Nomey v. State, Through Edwards

• Decision Date: 09 June 1975
• Docket Number: No. 56336,56336
• Citation: 315 So.2d 709
• Parties: J. George NOMEY et al. v. STATE of Louisiana, Through Honorable Edwin W. EDWARDS, Governor, et al.
• Court: Louisiana Supreme Court

Page 709

315 So.2d 709

J. George NOMEY et al. v. STATE of Louisiana, Through Honorable Edwin W. EDWARDS Governor, et al.

No. 56336.

Supreme Court of Louisiana.

June 9, 1975.

William J. Guste, Jr., Atty. Gen., Carmack M. Blackmon, Asst. Atty. Gen., Leon H. Whitten, Dist. Atty. for defendant-relator.

William H. Baker, Holloway, Baker, Culpepper & Brunson, Jonesboro, for plaintiff-respondent.

BARHAM, Justice.

In Tolar v. State, 315 So.2d 22 (decided April 24, 1975), this Court declared Act 325 of 1974 unconstitutional. ¹ The Tolar case, which originated in Jackson Parish, was an appeal by the State of Louisiana from the district court's judgment declaring Act 325 unconstitutional and enjoining its enforcement. Thus deprived to a valid existing legal means whereby the sale of alcoholic beverages in Jackson Parish could be prohibited, the requisite number of qualified electors petitioned the Jackson Parish Police Jury, the parish governing authority, requesting that a local option election be called under the surviving provisions of Act 41 of 1974, with a view to controlling alcoholic beverages. On May 12, 1975, pursuant to that petition, the Jackson Parish Police Jury scheduled a parish-wide election for July 1, 1975, at which time the four propositions authorized by Act 41 and contained in La. R.S. 26:583, as amended and reenacted, will be presented to the electorate of Jackson Parish. ²

Reacting to the Police Jury's action in calling the election, the respondents, holders of valid Class A and Class B retail liquor permits issued by the State, Jackson Parish and the towns in which they respectively operate, filed a petition in the district court attacking the constitutionality of Act 41, the statutory authority pursuant to which the police jury acted in calling the referendum election, and seeking to enjoin the election which they alleged would result in irreparable harm. The district court issued a temporary restraining order, declaring the provisions of Act 41 'patently unconstitutional.' Subsequent to the trial court's issuance of the temporary restraining order, the relators applied to this Court for supervisory writs, which we granted. The case was preferentially assigned due to the limited time available for review before the election date set.

Because the district court did not articulate the grounds upon which its determination of the unconstitutionality of Act 41 rests, the relators apparently attempted to meet each of the various contentions of respondents upon which the district court's determination could have been based. Having determined that the district court was essentially correct when it pronounced Act 41 unconstitutional we need discuss only those principles which render portions of the legislation void.

La. Const. Art. IV, § 4 (1921) prohibited the passage by the Legislature of any 'local or special' law on numerous specified subjects. Explicitly prohibited in that constitutional provision was the passage of any 'local or special law * * * (f)or the holding and conducting of elections, or fixing or changing the place of voting.' Likewise prohibited were special laws '(r) egulating labor, trade, manufacturing or agriculture * * *' and special laws '(c)oncerning any civil or criminal actions.' Art. III, § 12 of the Louisiana Constitution of 1974 contains a provision substantially similar to the 1921 provision. Art. III, § 12 reads in part:

'Except as otherwise provided in this constitution, the legislature shall not pass a local or special law:

(1) For the holding and conducting of elections, or fixing or changing the place of voting.

(6) Regulating labor, trade, manufacturing, or agriculture; fixing the rate of interest.

(10) Defining any crime.'

As may readily be seen by an examination of Section 2 of Act 41, which enacts La.R.S. 26:581.1, Act 41 encompasses a law which is on its face a 'special' law since its parish-wide application is confined to twelve enumerated parishes, the parish of Jackson included. Unquestionably, Act 41 affects elections, notwithstanding that the purpose of the elections approved in the act is to regulate intoxicating beverages. Relators argued before this Court that the election provided for in Act 41 is not the type of election contemplated by La. Const. Art. IV, § 4 (1921) and La. Const. Art. III, § 12 (1974) since the Act 41 election is a referendum election which does not bind the governing authority to enact an ordinance in accordance with the will of the electorate. No authority is cited in support of this argument; in point of fact, under an earlier local option law ³ this Court has held that it is the police jury's mandatory duty to adopt an ordinance giving effect to the results of a local option election. Perot v. Police Jury of Natchitoches Parish, 208 La. 1, 22 So.2d 666 (1945). The special character of those provisions of Act 41 which affect only the twelve enumerated parishes is emphasized when the situation under consideration is compared to that which existed in Peck v. City of New Orleans, 199 La. 76, 5 So.2d 508 (1941). In Peck the Court held that the provision of the voting machine law of 1940 which made the use of voting machines mandatory in New Orleans was not a 'special' law, notwithstanding that in all other parishes the use of the voting machine for elections was optional. The Court found that the law operated generally throughout the entire state because it authorized the use of voting machines in all elections. In effect, the special aspect of the law considered in Peck was available state-wide. In this case, the special aspect of the law setting forth procedures for local option elections, i.e., the provision for parish-wide elections in specified parishes, cannot be utilized by the remaining fifty-two parishes in the state. These fifty-two parishes must conduct local option elections on a ward or incorporated municipality basis; thus, those persons in these fifty-two parishes who wish to establish prohibition of certain classes of intoxicants must prevail in the democratic arena on a ward by ward or town by town basis and cannot avail themselves of parishwide elections.

We reiterate Perot's holding, wherein this Court found that the necessary and mandatory effect of a local option election was the enactment of an ordinance giving effect to the results of that election. Necessarily, if the proposition to prohibit the sale of beverages containing 3.2% Alcohol by weight and less was favorably voted upon in a parish-wide election, the trade, sale and manufacture of that product in that parish would be prohibited by ordinance. Penalties for the violation of the ordinance would attach. See La. R.S. 26:595. Therefore, in holding that Act 41 is a special law we consider the provisions of the 1974 Constitution which prohibit special laws '* * * (6) (r) egulating labor, trade, manufacturing, or agriculture; fixing the rate of interest * * *' and which prohibit special laws '* * * (10) (d)efining any crime' and the similar provisions in the 1921 Constitution. La. Const. Art. III, § 12 (1974); La. Const. Art. IV, § 4 (1921).

It is obvious that the effect of Act 41 of 1974 is to enact special legislation regulating elections and trade and defining crimes. It is therefore unconstitutional.

Since it appears that a legal determination of whether a law if 'local or special' may be based in part on equal protection considerations, ⁴ and since a determination that a law offends the equal protection guarantees of the United States and Louisiana constitutions would render that provision unenforceable, we turn to a consideration of whether Act 41 works a deprivation of the equal protection of the laws which is constitutionally guaranteed.

Throughout the State of Louisiana, in all of the sixty-four parishes, the sale of alcoholic beverages, recognized to be 'a lawful calling' (See Reynolds v. Louisiana Board of Alcoholic Beverage Control, 248 La. 639, 181 So.2d 377 (1966)), is undertaken by various citizens. Persons engaged in this business and those who desire to undertake such a business, while subject to any lawful exercise of regulation pursuant to the governing authority's police power, are entitled to stand equally before the law and to be accorded due process of law. La. Const. Art. I, §§ 2 and 3 (1974); La. Const. Art. I, § 2 (1921); United States Constitution, Fourteenth Amendment. Likewise entitled to the constitutional protections of equal protection and due process are those persons who wish to patronize these businesses. When the guarantees secured to individuals through the federal and state Bills of Rights are restricted in the lawful exercise of the police power, the restrictions imposed must be reasonable and designed to accomplish a purpose properly within the purview of the police power. ⁵ See, e.g., City of Crowley Firemen v. City of Crowley, 280 So.2d 897 (La.1973). We do not presume to doubt the Legislature's authority to delegate to local governing bodies the right to enforce the will of the electorate as expressed through the outcome of local option elections; nevertheless, the record before us does not contain, nor are we cognizant of, any circumstances which render reasonable the attempted distinctions in the character of local option elections in these twelve specially enumerated parishes. One distinction would effectively deprive persons in those twelve parishes who wish to engage in a business relating to intoxicants and those who wish to patronize such establishments of the right to have the will of their Immediate neighbors determine the existence or extent of prohibition on a Ward or Municipality basis rather than being selectively subjected to a parish-wide determination. Another distinction would arbitrarily permit some governmental subdivisions to vote on four propositions and restrict others to an election on three propositions.

By its very nature, and on its face, Act 41 contains provisions...