State v. Gelpi

• Decision Date: 24 February 1896
• Docket Number: 11,886
• Citation: 19 So. 468,48 La.Ann. 520
• Court: Louisiana Supreme Court
• Parties: STATE OF LOUISIANA v. PAUL GELPI

19 So. 468

48 La.Ann. 520

STATE OF LOUISIANA v. PAUL GELPI

No. 11,886

Supreme Court of Louisiana

February 24, 1896

Argued November 9, 1895

APPEAL from the Criminal Court for the Parish of Orleans. Moise J.

M. J Cunningham, Attorney General; Charles A. Butler, District Attorney, and John J. Finney, Assistant Attorney, for Plaintiff, Appellee.

Joshua G. Baker, for Defendant, Appellant

BREAUX J. MILLER, J., dissents.

OPINION

BREAUX J.

The defendant was charged with violating the statute requiring stores, saloons and all places of public business to be closed, and forbidding the proprietors of these places and their employees from making any sales on Sundays. He avers that an incorporated social club is not a "place of public business;" that furnishing liquors and refreshments exclusively to the members at graduated scale of prices, without view to profit, is not the occupation or employment the law intended to prohibit as a measure to secure to employers and employees a day of rest and amusement.

The facts, as shown on the hearing of the demurrer, are that the corporation was established for the improvement of the members, and for social enjoyment and pleasure.

There is a place within the precincts of the club where liquors are distributed to the members only, and it is in evidence that on a Sunday of a date given drinks were sold to members. The treasurer of the club testifies that the revenues of the club are all derived from the dues paid by the members and from the sale of liquors to them. That these revenues are applied to the payment of the expenses of the club, and that the sales are not made with a view to profit.

The demurrer was overruled, and the case was tried.

From the verdict and sentence condemning him to pay three hundred and one dollars (being the second conviction for a similar alleged offence) the defendant appeals.

It is not argued at the bar, on the part of the State, nor do the facts show that the defendant club attempted to escape from the effect of the law commonly known as the Sunday law.

We infer that the defence is a common defence, and that the clubs, similar to the defendant, in good faith seek to obtain an authoritative interpretation of the statute, and a construction that will be accepted as determinative of the points presented.

In the first case, State ex rel. Walker & Merz vs. Judge, 39 An. 132, 141, this court held that the compulsory duty of rest in each week is a legitimate exercise of the police power, and from that point of view the court sustained the constitutionality of the law upon the subject.

In the second, State vs. Fernandez, 39 An. 359, it was held that the keeper of a grocery store in a public market was not exempt, under the exemption clause of the law.

In the third, State vs. Boston and Pickwick Club, 45 An. 585, the question related to the imposition of license, and this court held that licenses were due by the clubs, although they did not follow a business and were not public, and were secure from intrusion.

We do not discover that the decision here will necessitate over-ruling any of these decisions. We adhere to the principles they announce.

We experience no difficulty in reaching the conclusion that the defendant club is not a public place. The evidence shows that none but members are admitted. The public have no right there.

But this conclusion does not dispose of the case. There remains a question both difficult and perplexing.

Within the precincts of the club there is a saloon in which liquors are sold to the members and business is carried on on Sundays the same as on week days. As we understand, it is a bar, save that it is not open to the public. There is a barkeeper. He accounts to the treasurer for the receipts of the sales and they form part of the general revenues of the club. To this point there is no great difficulty in interpreting the nature of this business. But it is urged at the bar that the statute was not intended to apply to places not of public business and not conducted with a view to profit.

We eliminate...