McGee v. Police Jury of Caddo Parish, La.

• Decision Date: 17 January 1953
• Docket Number: No. 7910,7910
• Citation: 63 So.2d 153
• Court: Court of Appeal of Louisiana — District of US
• Parties: McGEE et al. v. POLICE JURY OF CADDO PARISH, LA., et al.

Page 153

63 So.2d 153

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

No. 7910.

Court of Appeal of Louisiana, Second Circuit.

Jan. 17, 1953.

Rehearing Denied Jan. 30, 1953.

Booth, Lockard & Jack, Shreveport, for appellants.

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

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

GLADNEY, Judge.

The Police Jury of Caddo Parish called an election in that portion of Ward Four, Caddo Parish, outside of the City of Shreveport, to determine local option therein. The election was held on August 5, 1952, and the results thereof promulgated by the police jury indicate that on all issues voted upon the proponents of prohibition were successful. Thereupon the police jury passed a penal ordinance to carry into effect the election.

Plaintiffs allege they are qualified electors of that portion of Ward Four exclusive of the City of Shreveport, and are 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 soldier's bonus bond. They seek to enjoin the parish police jury, registrar of voters, district attorney and sheriff from enforcing in the unincorporated portion of Ward Four of Caddo Parish, the results of the local option election and to have declared null and of no effect the local option election upon various grounds set forth in the petition. It is also specially pleaded that the local option statute and the ordinance passed to give effect to the election are unconstitutional, as being repugnant to Section 10 of Article 18 and Section 15 of Article 4 of the Constitution of Louisiana, and Section 10 of Article 1 of the Constitution of the United States.

Upon filing of the petition a rule nisi for a writ of preliminary injunction issued in accordance with the prayer of plaintiffs' petition. On the return date defendants appeared to file an exception of no cause and no right of action, and, subject to the exception, an answer to the rule. The court heard and sustained the exception, dismissed plaintiffs' suit and denied a writ of preliminary injunction without a hearing on the rule. Plaintiffs then applied to the trial court for orders of suspensive and devolutive appeal returnable to this court. The orders were granted only for the devolutive appeal. In their search for relief applications were made by plaintiffs to the Supreme Court for the exercise of its supervisory powers by granting writs and a stay order to prevent the enforcement of the penal ordinance until the issue of the validity of the election be determined. The Supreme Court denied such relief. After argument and submission of the appeal to this court the plaintiffs asked the issuance of orders to stay the enforcement of the penal ordinance but we were of the opinion we were without jurisdiction and refused the order.

The only issue before this court is whether or not the judgment appealed from sustaining the exception of no cause and no right of action was correctly decided.

As we understand the issue herein raised, plaintiffs assert certain preliminaries and conditions precedent to the election were fatally defective, but they have raised no contention that the election, particularly as to its conduction and the promulgation thereof, were in any measure irregular.

The first attack made in the petition is that the election and the ordinance enacted pursuant thereto are illegal as violative of LSA-R.S. 26:581-595, the state statute providing for local option. The petition states:

'The Police Jury had the authority under said Title 26 of LSA-R.S. to call a local option election for any entire ward. It did not have authority to call a local option election for a portion only of a ward. It did call the instant election for a portion only of Ward 4, to-wit: that portion of Ward 4 outside the City of Shreveport.

* * *

* * *

'None of the four petitions, Exhibit 'S', taken individually or as a whole, purport to contain 25% of the qualified electors of Ward 4, as required by LSA-R.S. 26:582. Nor do they contain 25% of the registered voters of Ward 4.

'None of the 4 certificates of the Registrar, Exhibit 'B' taken individually or as a whole, purport to show that any one, or all taken together, of the 4 petitions, Exhibit 'B', contain 25% of the qualified electors of Ward 4, as required by LSA-R.S. 26:585, nor do they so contain.'

Briefly stated the contention is that the police jury is without authority and is not permitted to call a local option election for a portion only of a ward.

The issue confronting us can be answered only by proper interpretation and construction of the several statutory provisions prescribing the preliminary requirements for holding local option elections. It must be conceded at the outset that parishes and municipalities are creatures of the state. They possess no police power except as delegated by the state legislature or as may be expressed in the state constitution. It, therefore, must be accepted as true that in the calling of local option elections neither the police jury nor the governing officials of a municipality may exercise any power beyond that specifically delegated to it by the local option statute LSA-R.S. 26:581 et seq. In discussing the delegation of power the Supreme Court in State v. Jordan, 1944, 207 La. 78, 20 So.2d 543-545, said:

'Parishes and municipal corporations of this state are vested with no powers, and possess no authority, except such as are conferred upon, or delegated to, them by the Constitution and statutes. * * * It is conceded that, if the parishes and municipalities of this state have such delegated authority, it must be found in Act 17 of the First Extra Session of 1935, which act is commonly referred to as the 'Local Option Law' of this state.'

In judicial interpretation of a statute, legislative intent must be sought and in so doing we must construe statutory provisions as they are written, giving to the entire context a reasonable meaning.

In Levy v. New Orleans & Northeastern Railroad Company, La.App.1945, 20 So.2d 559-562, Judge Janvier expressed the rule as follows:

'In a Texas case, Patillo v. State, 120 Tex.Cr.R. 568, 47 S.W.2d 847, 848, the court considered whether a statute which referring to 'a train or street car or interurban car', Vernon's Ann.P.C. art. 1659, subd. 4, should be held to apply to motor busses not operated on rails. It was held that the statute did not apply. The court made a statement which we think pertinent here: 'When courts, in construing statutes, depart from the language employed by the legislator, they incur the risk of mistaking the legislative will, or declaring it to exist where, in truth, it never had an expression. The legitimate function of courts is to interpret the legislative will, not to supplement it, or to supply it.'

'It would be a dangerous practice indeed for courts to attempt to decide that an ordinance or a statute which by its express wording is limited to a certain thing or subject should be extended to others which, though possibly similar, are not included within the express terms of the statute or ordinance. If there is a necessity that such enactments be amended so as to bring them abreast of modern transportation development the amendments should come from the municipal authorities or the state legislators. They cannot come from the courts.'

We, therefore, conceive it our duty in the interpretation of the statute before us to give it a reasonable interpretation, bearing in mind that parishes and cities have only the power to call an election for the purpose of determining local option in the manner granted and subject to the restrictions of the statute delegating such authority to them. Also, we believe that a review of prior statutes and court decisions can be helpful in disclosing the proper construction to be placed upon the instant statute.

Previous to the enactment of LSA-R.S. 26:581-595, a local option statute has been in effect in this state at least since 1870. This is reflected in LSA-R.S. 1870, § 1211, Acts of 1902, No. 221, Acts of 1935, First Extra Session, No. 17, and Acts of 1948, No. 372. The latter act was superceded by LSA-R.S. 26:581-595. City of Alexandria v. La Combe, 1952, 220 La. 618, 57 So.2d 206, 209.

Act No. 17 of the First Extra Session of 1935 provided whenever an election had been held and the majority of the votes cast in a parish or in a ward election, if only a ward election has been held, should be against the sale of alcoholic beverages in excess of six per cent (6%) in volume within such parish or ward, the vote thereon in a parish or ward election would control and affect the governmental subdivision within the parish or ward respectively. The same act and section provides that on the question of whether or not liquors of an alcoholic content of more than one and one-half per centum and not exceeding six (6%) per cent of volume should be sold, a majority of the electors of a municipality voting in a parish-wide, ward, or strictly municipal election, would determine that the business voted upon may be conducted in such municipality, such business could be conducted therein until a majority of the electors of the municipality voting at a subsequent election should determine to the contrary. For this reason it was provided that separate ballot boxes should be had for the ballots of electors residing in the municipality or separate precincts established in the municipality, and in either case separate polls and tallies were required of the vote in the municipality in order that the promulgation of the returns would show the result of the vote in such municipality. In other words, it was expressly provided that any incorporated municipality would have the right to determine independently of the total parish or ward vote whether they should permit the sale of alcoholic liquors of low alcoholic content, but in the...