McManemin v. Bossier Parish Police Jury

• Decision Date: 20 October 1969
• Docket Number: No. 11270,11270
• Citation: 228 So.2d 36
• Parties: Raymond H. McMANEMIN, Plaintiff-Appellee, v. BOSSIER PARISH POLICE JURY, Defendant-Appellee, Ernest V. Gould et al., Intervenors-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 36

228 So.2d 36

Raymond H. McMANEMIN, Plaintiff-Appellee, v. BOSSIER PARISH POLICE JURY, Defendant-Appellee Ernest V. Gould et al., Intervenors-Appellants.

No. 11270.

Court of Appeal of Louisiana, Second Circuit.

Oct. 20, 1969.

Rehearing Denied Nov. 18, 1969.

Writ Refused Jan. 20, 1970.

L. G. Campbell, Bossier City, for intervenors-appellants.

Robinson & Wier, by Charlie Y. Wier, Bossier City, for plaintiff-appellee.

Louis H. Padgett, Jr., Bossier City, for defendant-appellee.

Before AYRES, DIXON, and WILLIAMS, JJ.

AYRES, Judge.

By this mandamus proceeding, plaintiff seeks to compel the defendant, Bossier Parish Police Jury, to issue to him a license, or permit, to sell intoxicating liquors at a designated location in Bossier Parish. Interested citizens, property owners, and taxpayers, residents of the immediate vicinity of the specified location, intervened and joined the defendant in resisting plaintiff's demands . The intervenors, moreover, in a separate action styled Gould et al . v. Bossier Parish Police Jury et al., La.App., 228 So.2d 43, and with which this cause was consolidated for trial, seek an injunction prohibiting the Bossier Parish Police Jury from issuing the permit, or license, sought by plaintiff.

Opposition to plaintiff's application and demands for a permit, or license, to sell intoxicating liquors at the proposed location is based upon the proposition that the sale of such liquors at the location comes within the prohibition imposed by Act No. 4l of 1908 which prohibits the sale of intoxicating liquors within five miles of Benton High School, located in Benton in Bossier Parish.

We find, in the instant case, no plea or attack upon the constitutionality of the aforementioned statute. However, in the companion case, plaintiff here, applicant for the permit, attacks the constitutionality of the statute and, in the alternative, pleads that this statute has been repealed or superseded by the provisions of Act No. 360 of 1948 as incorporated in Title 26 of the Revised Statutes. The trial court concluded inasmuch as Act No. 46 of 1908 was a criminal statute its constitutionality could only be raised in a prosecution under the act or in an action for a declaratory judgment. Consequently, the court found it unnecessary to make any findings or reach any conclusions as to the constitutionality of the statute or with respect to its having been repealed or superseded by subsequent legislation. Nor was any conclusion reached or pronouncements made with respect to whether intoxicating liquors could be legally sold at the proposed site. On finding that plaintiff possessed the qualifications which would entitle him to the permit, the police jury was directed by the court to issue the license, or permit. Accordingly, intervenors' demands were rejected in the instant case, as were their demands in the companion case in which they appeared as plaintiffs. From the judgments thus rendered, intervenors in the instant case and plaintiffs in the companion case appealed.

We find no merit in the proposition that the constitutionality of the statute can only be attacked in a prosecution or in an action for a declaratory judgment, and, moreover, no issue was made of it.

The General Assembly of the State of Louisiana, in adopting Act No . 46 of 1908, declared:

'That it shall be unlawful for any person, firm or corporation to sell any spirituous, vinous, malt, intoxicating liquors or any substitute therefor within five miles of Benton High School, located in Benton in the Parish of Bossier,'

and prescribed penalties for its violation. The location of the site where applicant proposes to sell intoxicating liquors is admittedly well within the distance of five miles of the Benton High School.

The statute with which we are primarily concerned (Act No. 46 of 1908) is a local and special statute. The statute upon which plaintiff-appellee relies as repealing or superseding the act of 1908, that is, Act No. 360 of 1948, subsequently amended by Section 6 of Act No. 463 of 1962 and by Section 1 of Act No. 183 of 1964, is a general statute.

It appears appropriate to first point out there is no showing in this record that either the governing authority of the Parish of Bossier or that of the municipality of Benton has ever availed itself of the authority conferred upon it by LSA-R.S. 26:80 to prohibit the sale of intoxicating liquor within either 300 feet or 500 feet of a church, school, or playground, If it indeed had such authority, because such sales were prohibited by Act No. 46 of 1908 within a distance of five miles of Benton High School. In any event, the provision referred to is a part of a general statute which could have only general application, and, hence, as will be hereinafter shown, is without effect so far as repealing or superseding the provisions of the local or special statute with which we are dealing here.

In Hewitt v. Webster, 118 So.2d 688, 690 (La.App., 2d Cir. 1960), we had occasion to make these observations with respect to the effect of general laws upon local or special laws:

'The general rule is that where there is apparent conflict between a general law and a special law on the same subject, the latter must prevail in the particular matter to which it applies. Even though the general law may have been passed subsequent to the passage of the special law, the special law is not thereby repealed by implication and it is only affected if reference is made to it expressly. State ex rel. Texada v. Capdevielle, 140 La. 229, 72 So. 946; Kearns v. City of New Orleans, La.App., 160 So. 470. Indeed, it is well settled that a general statute does not have the effect of repealing a special law upon the same subject matter unless the intent to repeal is so plain and evident that it cannot be doubted. State of Louisiana ex rel. Warren Realty Company, Inc., v. City of New Orleans, 226 La. 297, 76 So.2d 308; Wenk v. Anisman, 211 La. 641, 30 So.2d 567; Town of Abbeville v. Police Jury of Vermilion Parish, 207 La. 779, 22 So.2d 62; Third Dist. Land Co., Limited, v. Geary, 185 La. 508, 169 So. 528; State ex rel. City of New Orleans v . Louisiana Tax Commission, 171 La. 211, 130 So. 46. It will not be presumed, where the legislature enacted a special statute for a particular case, that it intended its repeal or amendment by the subsequent enactment of a general statute on the same subject matter . City of Bogalusa v. Gullotta, 181 La. 159, 159 So. 309; State ex rel. Day v. Rapides Parish School Board, 158 La. 251, 103 So. 757; Cumberland Telephone & Telegraph Co. v. Morgan's Louisiana & T.R. & S.S. CO., 112 La. 287, 36 So. 352; Welch v. Gossens, 51 La.Ann. 852, 25 So. 472.' (Emphasis supplied.)

See the authorities therein cited as well as:

State v. Lahiff, 144 La. 362, 80 So. 590 (1919) (upholding a 25-mile 'dry' zone around Camp Beauregard); State ex rel. Roussel v. St. John the Baptist Parish School Board, 135 So.2d 665, 668 (La.App ., 4th Cir. 1961) (in which the court followed Hewitt v. Webster, supra:

'Where there is a conflict between a general law and a special law on the same subject the latter must prevail even though it may have been enacted prior to the passage of the general law.').

The jurisprudence of this State is in accord with the rules generally prevailing elsewhere. 50 Am.Jur., Statutes, § 561, pp. 562--563; 82 C.J.S. Statutes § 298c, p. 515. Similar local and special statutes have been upheld, notwithstanding contentions were made that they were no longer in effect and had been repealed or superseded by general statutes subsequently enacted covering the same subject matter. See: State v. Bonner, 193 La. 402, 190 So. 626 (1939); State v. McDonald, 181 La. 547, 160 So. 75 (1935); State v. McDonald, 181 La. 549, 160 So. 75 (1935); City of Bogalusa v. Gullotta, 181 La. 159, 159 So. 309 (1935).

In the first of the McDonald cases, the defendant was convicted of selling intoxicating liquor within a distance of five miles of the Logansport High School, an offense denounced by Act No. 73 of 1896. There, it was contended this statute was superseded by Act No. 39 of 1921, Extra Session ('Hood Act'), which was itself repealed by Act No. 1 of 1933, Extra Session. The court held that the special statute was not repealed by the subsequent enactments.

In the second McDonald case, the defendant was charged with and convicted of keeping a 'blind tiger,' in violation of Act No. 8 of 1915, Extra Session, at a location within a distance of five miles of Logansport High School, where the sale of intoxicating liquor was, as aforesaid, prohibited by Act No. 73 of 1896.

These statutes, special and local in character, were held to have continued in full force and effect, notwithstanding the later enactment of general laws on the same subject matter.

The ruling in the Bonner case was to the same effect. There, defendant was convicted of having sold intoxicating liquor within five miles of Louisiana Industrial Institute, now Louisiana Polytechnic Institute, an offense charged under Act No. 74 of 1898. The statute was declared to be in effect, and the conviction was upheld.

In the Gullotta case a provision in the charter of the City of Bogalusa, a special statute, prohibited the sale of intoxicating liquor. There is was said:

'* * * it is settled in this state, as elsewhere, that a general statute does not repeal by implication an earlier local or special law, unless the intent to do so clearly appears.'

159 So. 309, 310.

See, also: Welch v. Gossens, 51 La.Ann. 852, 25 So. 472 (1899).

In State ex rel. Barrow v. Ogden, 50 La.Ann. 982, 24 So. 593, 594 (1898), the court said:

'It is clearly settled that the leaning of the court should be against the doctrine of repeal by implication or liberal construction. The two laws should stand, unless it be evident that the last repeals the particular law. If reason arises in support of each position, about equally good, the decision, in our view, should...