Helling v. Webster Parish Police Jury

523 So. 2d 904, 1988 WL 26869
CourtLouisiana Court of Appeal
DecidedMarch 30, 1988
Docket19425-CA
StatusPublished
Cited by4 cases

This text of 523 So. 2d 904 (Helling v. Webster Parish Police Jury) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Helling v. Webster Parish Police Jury, 523 So. 2d 904, 1988 WL 26869 (La. Ct. App. 1988).

Opinion

523 So.2d 904 (1988)

Mattie K. HELLING d/b/a Bobbie's Grocery, Plaintiff-Appellee,
v.
WEBSTER PARISH POLICE JURY, et al., Defendant-Appellant.

No. 19425-CA.

Court of Appeal of Louisiana, Second Circuit.

March 30, 1988.

*905 Henry N. Brown, Jr., Dist. Atty., Benton, for defendant-appellant.

Charles E. McConnell, Asst. Dist. Atty., Minden, for defendant-appellant.

Kitchens, Benton, Kitchens, Bolin & Warren by Paul E. Kitchens, Minden, amicus curiae.

Hamilton & Mayer by David A. Hamilton, Baton Rouge, for plaintiff-appellee.

Before FRED W. JONES, Jr., SEXTON and LINDSAY, JJ.

LINDSAY, Judge.

The defendant, the Webster Parish Police Jury, appealed the decision by the trial court finding invalid a local option election on liquor sales held in Ward One of Webster Parish in 1974. For the following reasons, we reverse the trial court judgment.

FACTS

On October 1, 1974, the Webster Parish Police Jury passed a resolution to hold a local option election concerning the sale of liquor in Ward One of Webster Parish. The following propositions appeared on the ballot:

1. Shall the sale of beverages of low alcoholic content containing more than three and two-tenths percent alcohol by weight, and not more than six percent alcohol by volume, be permitted in Ward One of Webster Parish, Louisiana.
2. Shall the sale of beverages of high alcoholic content, containing more than six percent alcohol by volume for consumption on the premises be permitted in Ward One of Webster Parish, Louisiana.
3. Shall the sale of beverages of high alcoholic content, containing more than six percent alcohol by volume by the package only and not for consumption on the premises be permitted in Ward One of Webster Parish, Louisiana.
4. Shall the sale of beverages containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight be permitted in Ward One of Webster Parish, Louisiana.

The first three propositions were placed upon the ballot following submission to the Webster Parish Police Jury of petitions containing the signatures of more than twenty-five percent of the registered voters of Ward One of Webster Parish.

The fourth proposition was placed on the ballot by the sole initiative of the Webster Police Jury. The police jury claimed that 1974 La.Acts, No. 648 granted the police jury the authority to place such a proposition on the ballot on its own initiative without requiring a petition of twenty-five percent of the registered voters in the Ward. La.Acts 1974, No. 648 enacted LSA-R.S. 26:586.1.

The election was held November 23, 1974. All four propositions were defeated in the unincorporated portions of Ward One. The results of the election were promulgated December 3, 1974. On that date, the defendant Police Jury enacted Ordinance 714. This ordinance embodied the election results and prohibited the sale of alcoholic beverages, the consumption of *906 alcoholic beverages on retail business premises and the possession of alcoholic beverages for sale in Ward One of Webster Parish, excluding municipalities. The ordinance defined "alcoholic beverage" as any substance containing more than one-half of one percent alcohol by volume.

On January 6, 1987, the plaintiff, Mattie K. Helling d/b/a Bobbie's Grocery, submitted to the Webster Parish Police Jury an application for a retail alcoholic beverage permit to sell beverages of high and low alcohol content at her place of business located two miles south of Doyline, in Ward One of Webster Parish.

On February 3, 1987, the Webster Parish Police Jury disapproved the plaintiff's application for a liquor license because her "establishment is in an area that was voted dry" and therefore the granting of such a license would be in violation of Ordinance 714.

On February 13, 1987, the plaintiff filed suit against the Webster Parish Police Jury and members of the Police Jury, claiming that Ordinance 714, under which her application for a liquor license was denied, was an absolute nullity. In essence, the plaintiff objects only to the fourth proposition of the 1974 election prohibiting the sale of alcoholic beverages containing not more than 3.2 percent alcohol by weight. The plaintiff claimed that the Webster Parish Police Jury did not have any authority to place this proposition on the ballot on its own initiative. The plaintiff did not attack the other three propositions relating to beverages of high alcohol content, all of which were placed upon the ballot pursuant to a petition of twenty-five percent of the voters in Ward One.

The plaintiff argued that LSA-R.S. 26:586.1, under which the defendant claimed authority to place the fourth proposition on the ballot, was in conflict with LSA-R.S. 26:588, the latter prohibiting bans on the sale of beverages containing 3.2 percent alcohol or less, except in certain enumerated parishes which did not include Webster Parish.

On January 16, 1987, the trial court signed and filed a judgment in favor of the plaintiff, finding that Ordinance 714 of the Webster Parish Police Jury was void insofar as it prohibited the sale of alcoholic beverages containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight in Ward One of Webster Parish. The trial court further ordered the Webster Parish Police Jury to immediately issue to the plaintiff a permit to sell such alcoholic beverages in Ward One of Webster Parish.

In reasons for judgment, the trial court stated that under Johnston v. Morehouse Parish Police Jury, 424 So.2d 1053 (La. App.2d Cir.1982), writ denied 427 So.2d 1208 (La.1983), (Johnston I), LSA-R.S. 26:586.1 did not grant authority to all parishes to place on ballots propositions regarding the sale of 3.2 percent alcoholic beverages. The court stated that LSA-R.S. 26:586.1 merely set forth the procedural apparatus for those limited number of parishes who were granted such authority under LSA-R.S. 26:581.1.

Therefore, the trial court, in the present case, declared invalid the 1974 local option election insofar as it prohibited the sale of alcoholic beverages containing more than one-half of one percent alcohol by volume but not more than 3.2 percent alcohol by weight, and declared that Webster Parish Ordinance 714 was invalid as it pertained to 3.2 percent alcoholic beverages.

The trial court denied the defendant's motion for a new trial and the defendant appealed the trial court judgment. The issue before us on appeal is whether the Webster Parish Police Jury had authority in 1974 to place upon the ballot, upon its own initiative, without a petition of twenty-five percent of the registered voters of the Ward, a proposition to prohibit the sale of alcoholic beverages containing more than one-half of one percent alcohol by volume, but not more than 3.2 percent alcohol by weight. For the following reasons, we find that in 1974, the Webster Parish Police Jury did in fact have such authority and that Webster Parish Ordinance 714, prohibiting the sale of 3.2 percent alcoholic beverages, is valid.

*907 VALIDITY OF LOCAL OPTION ELECTION

After a review of the jurisprudence and the statutes applicable to this 1974 local option election dealing with liquor sales, we conclude that the election complained of by the plaintiff was valid.

The state has the ultimate authority to regulate the sale of intoxicants.

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