McGee v. Police Jury of Caddo Parish

• Decision Date: 29 May 1953
• Docket Number: No. 7985,7985
• Citation: 66 So.2d 408
• Court: Court of Appeal of Louisiana — District of US
• Parties: McGEE et al. v. POLICE JURY OF CADDO PARISH et al.

Page 408

66 So.2d 408

McGEE et al. v. POLICE JURY OF CADDO PARISH et al.

No. 7985.

Court of Appeal of Louisiana, Second Circuit.

May 29, 1953.

Rehearing Denied June 11, 1953.

Booth, Lockard & Jack, Shreveport, Horace M. Bickham, Jr., Vivian, for appellants.

Edwin L. Blewer, John A. Richardson, Shreveport, for appellees.

Elmo P. Lee, Jr., Shreveport, amicus curiae.

GLADNEY, Judge.

This action was brought to enjoin the Police Jury, Registrar of Voters, District Attorney and Sheriff in and for Caddo Parish, from enforcing Parish Ordinance No. 754, passed by the Police Jury to make effective prohibition in that portion of Ward 4 outside of the City of Shreveport as a result of a local option election held therein on August 5, 1952. Plaintiffs allege there was not substantial compliance with certain statutory requirements for holding the election, and further that Ordinance No. 754 and the state local option statute, LSA-R.S. 26:581-595, should be held unconstitutional.

Plaintiffs are qualified electors of that portion of Ward 4, exclusive of the City of Shreveport, and at the time this suit was initiated were therein engaged in the retail business of selling beverages of alcoholic content. One of the plaintiffs, Milton C. Crawford, is the owner of a $1,000 World War II bonus bond issued pursuant to Article 18, Section 10, of the Louisiana Constitution, Acts 1948, No. 530, page 1476.

Reference to the record discloses no substantial dispute as to the material facts involved. Plaintiffs have made sufficient proof of such allegations of the petition as were not admitted by respondents.

On November 6, 1951, the Registrar of Voters of Caddo Parish certified that certain local option petitions which had been circulated in Ward 4 outside of Shreveport contained the requisite number of qualified electors, and a local option election was called by the Police Jury for August 5, 1952. This election was carried by the proponents of prohibition on all three issues balloted upon.

The litigants herein were before this court on a former occasion at which time we held the court a quo erred in sustaining an exception of no cause or right of action. McGee v. Police Jury of Caddo Parish, La.App., 63 So.2d 153. After the remand, defendants filed a supplemental and amended answer and in due course the cause was tried on its merits. Judgment was rendered rejecting the demands of plaintiffs in toto, written reasons being assigned therefor. From the adverse ruling plaintiffs have appealed.

Several errors have been assigned to the judgment of the court a quo, which require our consideration.

First, appellants complain of a ruling permitting the filing of a supplemental answer by the defendants for the purpose of showing 'simultaneous' local option proceedings in the City of Shreveport while the preliminaries to the local option election were going forward in that portion of Ward 4 outside of the City of Shreveport. Objection was made that the amended answer came too late after an exception of no cause of action had been considered by the trial and appellate courts, and further, that its contents were assertedly irrelevant as relating only to other elections beyond the consideration of this case.

We do not find plaintiffs have been prejudiced by the ruling, and apparently counsel concede this much for it is asserted in their brief:

'The fact of 'simultaneous' local option proceedings in Shreveport is, at best, no more than illustrative and confirmatory of the alleged and heretofore argued 'undesirable consequences' of a decision in favor of plaintiffs.'

The tendency of modern practice is to yield as little as possible to technicalities, and to permit as far as practicable amendments to pleadings which work no injury and prevent useless delay and costs. See: Davis v. Arkansas Southern R. Co., 1906, 117 La. 320, 41 So. 587; Delaney v. Little, 1926, 3 La.App. 349; Meridian Lumber Company v. Holt, 1929, 9 La.App. 723, 120 So. 233; Pool v. Pool, La.App., 1944, 16 So.2d 132; Lemoine v. Lacour, 1948, 213 La. 109, 34 So.2d 392; Pancoast v. Cooperative Cab Company, La.App., 1948, 37 So.2d 452; Douglas v. Haro, 1949, 214 La. 1099, 39 So.2d 744; Bourg v. J. Ray McDermott & Company, La.App., 1951, 52 So.2d 717; Randazzo v. Falgout, La.App., 1951, 54 So.2d 642; Gomez v. Pope Park, Inc., La.App., 1952, 56 So.2d 229.

As we see the amended answer, it does not present more than a foundation for arguing the elections held in Shreveport and outside of it in Ward 4 permitted all the electors in Ward 4 to ballot on the issues. Such a restricted ward election irrespective of an almost simultaneous city vote deprives the electors residing in the city from voting in the ward election, and consistent with our interpretation of the statute, the election for the portion of the ward outside of the city does not substantially comply with statutory requirements imposed by the local option statute, LSA-R.S. 26:581-595.

Second. The next assignment of error asserts some petitions were irregular as they contained signatures improperly dated or not dated when signed, and, therefore, it cannot be said that such undated signatures were inscribed within sixty days of the date of filing the petition with the Registrar of Voters as contemplated by LSA-R.S. 26:584.

The local option statute, LSA-R.S. 26:583, provides that each petitioner shall sign his name in his own handwriting and shall write his address and the date on which he signed, otherwise his signature shall be null and void. The Registrar of Voters, therefore, correctly ruled the undated signatures null and void. They were without legal efficacy and with no more effect than if not inscribed. All properly dated signatures appeared to have been signed within sixty days from the filing of the petition.

Third. It is alleged that proposition one as presented in the petitions was phrased in language different from the form prescribed in LSA-R.S. 26:583 and 587 for the petition and ballot respectively and, therefore, there was not a substantial compliance with the statute.

In the petitions circulated, proposition one was written:

'(1) Shall the sale of beer, porter, ale, fruit juices and wine containing more than three and two-tenths per centum (3.2%) alcohol by weight and not more than six per centum (6%) alcohol by volume be permitted?'

Whereas, in the above referred to provisions of the LSA-Revised Statutes the form for proposition one reads:

'(1) Shall the sale of beverages of low alcoholic content containing more than three and two-tenths per cent alcohol by weight and not more than six per cent alcohol by volume be permitted? * * *'

Had the variance from the statute involved the ballot used in the election, possibly it would be fatal as Section 587 expressly says: 'When such an election has been ordered the following propositions, and no others shall be plainly printed upon a special ballot to be used for the election, otherwise the election shall be null and void * * *.' However, Section 583 contains only the following direction: 'Any qualified elector desiring a referendum election, shall sign a petition addressed to the governing authority of the subdivision in which he resides, and in substantially the following form * * *'. (Emphasis supplied.) Upon reference to Acts of 1948, No. 372, Section 6, we observe that proposition one as written in the petition, corresponds exactly with the requirements of that statute. The revision of language occurred when the 1948 act was incorporated into the Revised Statutes. A reporter's note appearing under LSA-R.S. 26:581 explains:

'This section was substituted for section 2 of Act No. 372 of 1948. The 1948 section defined 'beer' as those beverages with an alcoholic content of not less than 1/2 of 1% and not more than 6% and 'alcoholic beverages,' as those with an alcoholic content of more than 6%. Using the terms decided on by the Council, the Reporter has merely made reference here to the definitions contained in Chapter 2 of this Title and has made the proper substitutions throughout this Chapter.'

We accordingly are of the opinion that the form of the petitions as used in the election was in substantial compliance with the requirements of LSA-R.S. 26:583 Fourth. One of appellants, Milton C. Crawford, is the owner of a $1,000 World War II bonus bond issued under Article XVIII, section 10, of the Louisiana Constitution, which, inter alia, provides that for the payment of such bonds:

'* * * the Board of Liquidation * * * is authorized to pledge and dedicate the avails and proceeds of said tax * * * until * * * all * * * bonds * * * have fully been paid * * *. The surplus * * * in each year * * * after paying the bonuses * * * shall be passed to the general fund by the general treasurer * * *. Until all such valid claims for bonuses and all such notes, bonds, certificates of indebtedness, or other evidences of debt, and all interest thereon, shall have been paid in full, the said tax shall not be abolished or reduced and no laws shall be adopted by the Legislature of Louisiana affecting adversely the collection thereof.'

The provisions clearly dedicate only the avails and proceeds from the tax, which was levied and fixed at $10 per barrel in Acts 1948, No. 8, LSA-R.S. 26:342, and authorize the surplus, after the requirements of the bonds have been met, to be paid into the general fund. See State ex rel. Kemp, Attorney General v. Board of Liquidation of State Debt, 1949, 214 La. 890, 39 So.2d 333.

Crawford contends Police Jury Ordinance No. 754 and the local option law, LSA-R.S. 26:581-595, violate his contractual rights with the state, granted by Article XVIII, Section 10, of the Louisiana Constitution and are repugnant to Article IV, Section 15 of the Louisiana Constitution, and Article I, Section 10, of the Constitution of the United States of America. These constitutional provisions relate to the protection of a citizen from being divested of his...