State v. Sissons

• Citation: 292 So.2d 523
• Decision Date: 25 March 1974
• Docket Number: No. 54058,54058
• Parties: STATE of Louisiana v. Victoria SISSONS.
• Court: Supreme Court of Louisiana

Page 523

292 So.2d 523

STATE of Louisiana v. Victoria SISSONS.

No. 54058.

Supreme Court of Louisiana.

March 25, 1974.

Rehearing Denied April 26, 1974.

Bobby L. Culpepper, William H. Baker, Holloway, Baker, Culpepper & Brunson, Jonesboro, for amicus curiae.

Martin S. Sanders, Jr., Winnfield, for defendant-relator.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Charles B. Bice, Dist. Atty., for plaintiff-respondent.

DIXON, Justice.

Defendant was tried under a bill of information charging her with sale of an intoxicating beverage, a half pint of whiskey, in violation of the local option ordinance of Winn Parish. Defendant was convicted after trial before a judge and was sentenced to serve sixty days in the parish jail and pay a fine of $200.00 with an additional sixty days in default of the fine. We granted certiorari.

In the motion in arrest of judgment defendant urged that the offense charged was not punishable under a valid statute in that the ordinance in question is in conflict with state statutes and constitutes a denial of equal protection as guaranteed under the federal and state constitutions.

A brief history of our liquor laws since the repeal of prohibition is pertinent. Act 2 of the Extraordinary Session of 1933 permitted the business of selling, producing, etc., of beer, porter, ale, fruit juices or wine with an alcoholic content greater than one-half of one per cent by volume. Parishes and municipalities were permitted to prohibit such businesses through local option elections. No penalty was stated or authorized for violation of ordinances prohibiting traffic in alcoholic beverages.

Act 15 of 1934 was enacted to regulate beverages containing more than six per cent of alcohol by volume. Parishes, wards and municipalities were permitted to prohibit traffic in such beverages by local option elections. Violations of dry ordinances carried a statutory penalty of a fine of not less than $100.00 nor more than $500.00 or imprisonment of not less than thirty days nor more than six months. On default of payment of fine an additional period of imprisonment of up to six months could be imposed.

Act 17 of the First Extraordinary Session of 1935 expressly repealed Act 2 of the Extraordinary Session of 1933 and Act 15 of 1934. The act authorized the exercise of local option by parishes, wards and municipalities. These subdivisions could prohibit beverages with an alcoholic content between one-half of one per cent and six per cent by volume or those with an alcoholic content greater than six per cent or both. The act also authorized parishes and municipalities to prescribe penalties for violation of the ordinances adopted under the act. The penalties were not to exceed a fine of $500.00 or imprisonment for six months or both, with the power to provide an additional imprisonment not to exceed six months for failure to pay any fine. The ordinance in question was enacted in 1939 pursuant to this act.

Act 372 of 1948 amended the local option law. Wards, incorporated villages, towns and cities were authorized to conduct local option elections. The effect of local option prohibition was limited and did not ban beverages containing more than one-half of one per cent and not more than 3.2 per cent of alcohol by weight. The penalties authorized for violation of local prohibition were reduced to a maximum of a $100.00 fine or imprisonment for thirty days or both. Section 17 of the act repealed all laws on the same subject matter and those in conflict therewith saving however local ordinances prohibiting beverages containing more than one-half of one per cent of alcohol by volume.

Section 2 of Act 2 of the Extraordinary Session of 1950 expressly repealed Act 372 of 1948 and local option provisions were enacted as La.R.S. 26:581--26:595. The savings clause of Act 372 of 1948, Section 17, was deleted and does not appear in our current law.

R.S. 26:581--26:595 permits the exercise of local option by and Ward or Incorporated municipality. Under § 588 of the act local prohibition does not affect beverages containing more than one-half of one per cent of alcohol by volume and not more than 3.2 per cent of alcohol by weight. The exercise of local option on a parishwide basis is expressly prohibited and the penalties for violation of a prohibition ordinance may not exceed a fine of $100.00 or imprisonment for thirty days or both.

The Parish ordinance in question prohibits the sale, production, etc., of beverages containing more than one-half of one per cent of alcohol by volume. The penalties for violation of this prohibition are a fine not to exceed $500.00 or imprisonment not to exceed six months or both. An additional six months imprisonment may be imposed for failure to pay any fine levied.

The power to regulate traffic in alcoholic beverages is vested in the State and the legislature may delegate such power to political subdivisions of the State. See State v. Emerson, 197 La. 783, 2 So.2d 212 (1941); State v. Gardner, 198 La. 861, 5 So.2d 132 (1941). However, by so delegating the State does not surrender its power and the legislature can at any time alter or recall the delegated power. State v. Gardner, supra; State v. City of New Orleans, 151 La. 24, 91 So. 533 (1922). Generally, a police regulation of a subdivision of the State enacted pursuant to authority delegated by the State cannot exceed the grant of authority and must fall when it conflicts with State law. See La.Const. Art. 14, § 40(d) (1921). Cf. City of Alexandria v. La Combe, 220 La. 618, 57 So.2d 206 (1952); State v. Bradford, 220 La. 176, 56 So.2d 145 (1951).

The ordinance before us exceeds the legislative delegation of power in the following respects:

(1) It is an exercise of local option on a parish-wide basis in contravention of R.S. 26:582.

(2) It purports to prohibit beverages with an alcoholic content which by the terms of R.S. 26:588 may not be regulated by local prohibition.

(3) The penalties under the ordinance grossly exceed those allowed under R.S. 26:595.

The 1948 act did contain a savings clause providing that the act did not invalidate certain local ordinances prohibiting the sale of alcoholic beverages. This provision may have served as a basis for the continuing validity of ordinances such as that before us until enactment of the revised statutes of 1950. However, the savings clause, Section 17 of Act 372 of 1948, was repealed upon enactment of the revised statutes.

R.S. 1:16 provides:

'The Louisiana Revised Statutes of 1950 shall be construed as continuations of and as substitutes for the laws or parts of laws which are revised and consolidated herein. The adoption of these Revised Statutes shall not affect the continued existence and operation, subject to the provisions hereof, of any department, agency, or office heretofore legally established or held, Nor any acts done, any funds established, Any rights acquired or accruing, any taxes or other charges incurred or imposed, any penalties incurred or imposed, or any judicial proceedings had or commenced Prior to the effective date of these Revised Statutes.' (Emphasis added).

Past decisions of this court have upheld the validity of ordinances similar to the one at bar reasoning that R.S. 1:16 preserved the delegation of power acting in effect as a general savings clause. State v. Dunning, 224 La. 204, 69 So.2d 16 (1953); State v. Wilson, 221 La. 990, 60 So.2d 897 (1952); State v. Reed, 220 La. 720, 57 So.2d 413 (1952); State v. Bradford, supra. These opinions relying on the language emphasized above found that prior ordinances were 'acts done' within the meaning of the statute and thus were unaffected by the enactment of the revised statutes.

We believe this conclusion is erroneous. To say that an ordinance which exacts criminal penalties and derogates from the legislative delegation of power is preserved by the inclusion of a mere statement that 'the adoption of these Revised Statutes shall not affect . . . any acts done,' where the ordinance in question was only supported by a savings clause in the prior statute and that savings clause was specifically repealed when the current statute was adopted is not sound. The deletion of the savings clause more clearly indicates the intent of the legislature to permit only those local option provisions which conformed with R.S. 26:581--26:595. As Fournet, C.J. stated, commenting on the effect of the deletion of Section 17 of Act 372 of 1948 in his dissent from State v. Dunning, supra:

'It is obvious to me that the legislature, having pointedly omitted this provision did so to avoid the unwarranted discrimination made possible by the inclusion of such a provision. At least, it is reasonable to assume that their action in deleting this clause was prompted by such motive.

'And if we are to construe the provision of R.S. 1:16, the general saving clause, as continuing in effect the ordinances adopted under previous laws (particularly when all acts on the subject matter were specifically repealed in the Revised Statutes, and more particularly Acts 15 of 1934, 17 of the 1st Extra Session of 1935, and 372 of 1948) it is our duty to follow the cannon of interpretation which requires that such construction not only be reasonable but lead to no absurd consequences. In my opinion, it seems reasonable to assume that the legislature, in the light of the above-mentioned deletion, intended to provide a uniform penalty for all such violations, that is, a maximum fine of $100 and imprisonment of not more than 30 days, or both. This, in my opinion, would be a reasonable construction of the saving clause, leading to no absurd consequences and consonant with sound logic and reasoning.'

A statute which imposes criminal sanctions is to be strictly construed. Sevin v. Louisiana Wildlife and Fisheries Commission, 283 So.2d 690 (1973); State v. Gauthier, 263 La. 678, 269 So.2d 204 (1972).

R.S. 1:16 lists with specificity...