McGee v. Police Jury of Caddo Parish

73 So. 2d 424, 225 La. 471, 1954 La. LEXIS 1237

• Court: Supreme Court of Louisiana
• Decided: March 22, 1954
• Docket: 41376
• Status: Published

Opinions

HAWTHORNE, Justice.

A writ was granted in this case so that we might review a judgment of the Court of Appeal, Second Circuit, 66 So.2d 408, decreeing a local option election held in the unincorporated portion of Ward 4 of Caddo Parish illegal, null, and void.

In Ward 4 of Caddo Parish there is one incorporated municipality, the City of Shreveport. The remainder, the unincorporated portion, of the ward contains four precincts. Petitions purportedly complying with the provisions of R.S. 26:581 to 595 were circulated in the unincorporated portion of Ward 4, that is, in Precincts 1, 2, 3, and 4, addressed to the Police Jury of Caddo Parish,, requesting that body to call a local option election in the unincorporated portion of Ward 4. These petitions were filed with a Caddo Parish registrar of voters, and she certified that the petitions so circulated contained the names of. 25 per •cent of the registered voters of the unincorporated portion of Ward 4. Pursuant to the request made in these petitions the Police Jury of Caddo Parish called a local option •election for the unincorporated portion of the ward only, which was held on August 5, 1952. At this election the majority of the voters voted against permitting the sale of alcoholic beverages as defined in the statute, or, in other words, the vote was "dry”.

Respondents, qualified to vote in the •election, timely instituted this suit (R.S. 26:590) to have the election and the ordinance adopted pursuant to it declared illegal and ineffective on the ground, among •others, that the election was not called and •conducted pursuant to the requirements of the Revised Statutes, in that the Police Jury of Caddo Parish had no authority under the local option statute to call the election for the unincorporated portion of the ward only.

The Court of Appeal pointed out in its opinion that parishes and municipal corporations are creatures of the State and are vested only with such powers as may be conferred upon or delegated to them by the Legislature or the Constitution of this-state. Moreover, the prohibition of the sale of alcoholic beverages by municipalities or police juries is a police power delegated to such bodies by the Legislature after a local option election, legally held, in which the majority of the elector's have voted against the sale of such beverages;1 and, being a police power, it is properly exercised only if the police jury acts pur-j suant to the authority conferred by statute. City of Minden v. David Bros. Drug Co., 195 La. 791, 197 So. 505; State v. Jordan, 207 La. 78, 20 So.2d 543.

The source of the revised statute under which the police jury purported to act in this case is Act 372 of 1948. According to the title of this act, it is an act “To provide for separate referendum elections in wards and incorporated villages, towns and cities upon the petition of not less than twenty-five (25%) per cent of the duly qualified electors of said subdivisions * * * ”. Thus its title indicates that it provides for local option elections only on a ward-wide or- municipal-wide basis, and this title makes no mention of an election in the unincorporated portion of a ward.

R.S. 26:582 reads as follows:

“Upon petition of not less than twenty-five per cent of the qualified electors residing in any ward, or any incorporated municipality the governing authority shall order a referendum election to be held to determine whether or not the business of manufacturing, producing, rectifying, distilling, blending, using, storing, distributing ánd selling alcoholic beverages, shall be conducted and licensed therein.

“This election shall be separately called and held, and the result separately binding for each incorporated municipality, and for the unincorporated balance of the ward. No such election shall be held on a parish wide basis or for any subdivision other than the ones above mentioned.

“No such election shall be held for the same subdivision oftener than once in every two years.”

In the first paragraph of this section again wé find that a referendum election can be called by the governing authority of a ward or an incorporated municipality only upon the petition of not less than 25 per cent of the electors residing in such ward or municipality.

i Secti‘ón'l583 deals with the form of the petition and provides that any qualified elector desiring a referendum election shall sign a petition addressed to the governing authority of the subdivision in. which he resides. The form of the petition, as set forth in this section, shows that it is a request for a referendum election to be held in a ward or in an incorporated municipality.

Section 585 deals with the verification of the petition, and in Paragraph 4 of this section it is provided that the verification of the registrar of voters shall show the number of qualified electors of the ward or of the municipality, as the case may be. No mention is made of the certification of a petition for an unincorporated portion of a ward.

Section 587 sets out the form of the ballot for submission of three propositions, and in the concluding paragraph it is provided: “A majority vote cast on each proposition shall separately determine that issue for the ward, or for the incorporated municipality. When a ward contains an incorporated municipality, the issue shall be separately determined for the municipality and for the unincorporated balance of the ward.” (Italics ours.) Again, there is no indication that an election may be called and held only in the unincorporated portion of a ward,, but on the contrary this paragraph contemplates only ward-wide and municipal elections, with a special provision for determining the issue in a ward-wide election where a ward contains a municipality.

The language of Section 592 also indicates that ward and municipal elections are-the only ones contemplated by the statute, for that section provides that such elections shall be supervised by the board of supervisors of election for the parish in which the ward or incorporated municipality calling the election is located.

In considering' the statute as a whole, we do not find any express and specific delegation of authority by the Legislature to police juries to call a local option election in an unincorporated portion of a ward, but on the contrary we think that the only power delegated to police juries is to hold such election on a ward-wide basis; and in the absence of such delegation of authority they are without power or authority to call, conduct, and hold such election upon petition of electors for an election in the unincorporated portion of a ward.

Relators in support of their contention that the judgment of the Court of Appeal is erroneous rely on certain language or expressions found in Sections 582, 584, and 587 of the local option statute, R.S. 26. Section 582, as we have heretofore pointed ■out, provides that the governing authority •of any ward or incorporated municipality shall order a referendum election to be held upon the petition of not less than 25 per •cent of the qualified electors residing in the ward or municipality. Relators argue that the second paragraph of this section ■confers the power and right on the police jury to call an election in the unincorporated portion of a ward when the ward contains a municipality, and they rely on the following language found therein: “This election shall be separately called and held, and the result separately binding for each incorporated municipality, and for the unincorporated balance of the ward.” The words “This election” as found in this paragraph would seem to apply to any referendum election, whether it were called on a ward-wide basis or in an incorporated municipality, but a reading of the entire paragraph discloses that these words could apply only to a ward election in a ward where there is one or more incorporated municipalities. They could not apply to an election called by a municipality because the unincorporated balance of the ward would not be affected, nor could they apply to a ward election where there is no incorporated municipality in the ward. This paragraph must be read with the preceding paragraph of Section 582, under which the governing authority of a municipality or of a ward has no power, right, or authority to call a referendum election except upon the petition of not less than 25 per cent of the qualified electors therein. No provision is made in the second paragraph relied upon by relators for a petition- from the unincorporated portion of a ward which contains an incorporated municipality, and in the absence of a provision in the statute for such a petition the police jury is without authority to call such an election.

Relators contend that this paragraph permits the calling and holding of such an election, but no provision is made in the statute for the procedure for initiating such election. The statute provides that an election can be called only in a ward or in a municipality upon a petition of 25 per cent of the qualified electors residing therein. Therefore, under the very plain terms of the statute, to have such an election as contended for by relators herein, it would be necessary to secure the signatures of 25 per cent of the electors residing in the entire ward which contained an incorporated municipality although the police jury would call the election only for the unincorporated portion of the ward.

The purpose of Paragraph 2 of Section 582 is made clearer by an examination of Section 587 of the statute which deals with the election itself. The last paragraph of this section provides that a majority vote cast for each proposition shall separately determine the issue for the ward or for the incorporated municipality, and that, when a ward contains an incorporated municipality, the issue shall be separately determined for the municipality and for the unincorporated balance of the ward. When these two provisions are considered together, they clearly indicate that the statute contemplates that, when an election is called on a ward-wide basis and the ward contains an incorporated municipality, the issue presented shall be separately determined by the electorate for the municipality and for the unincorporated balance of the ward. It certainly does not contemplate that two elections shall be held, one for the unincorporated portion of the ward and one for the municipality or incorporated portion of the ward, because this section plainly provides that the issue in a ward-wide election shall separately be determined for the municipality and for the unincorporated balance of the ward. In such a ward-wide election called by the police jury the sale of intoxicating beverages could be prohibited in the municipality if the majority of the voters so voted, and the unincorporated portion of the ward could by a majority vote permit such sale, or “vote wet”, or vice versa. The purpose of this provision relied upon by relators was simply to enable the issue in a ward-wide election to be separately determined for the incorporated and the unincorporated portions of such ward.

Relators contend that a holding by this court that an election could not be called and held for the unincorporated balance of a ward containing an incorporated municipality would create a hiatus in the law. They say, for example, that, if an election was held in an incorporated municipality in such ward, such election would disenfranchise the electors of the unincorporated portion of the ward for at least two years, as. the statute provides that no such referendum election shall be held in the same subdivision oftener than once in every two-years. There is no merit to this contention, for under the provisions of the statute the governing authority of a municipality could 'call a local option election, and the majority of the voters therein could “vote wet”; notwithstanding the municipal election, the police jury for tire ward in which the municipality is situated could at any time thereafter call a ward-wide election, and in this election the majority of the electors of the municipality could “vote dry”, and the unincorporated balance of the ward could “vote wet”, and the result would be separately binding on each. The holding of these two elections, one called by the governing authority of the municipality and the other called by the governing authority of the ward, would not violate the provision of the statute that no such election shall be held for the same subdivision oftener than once in every two years, as the municipality and the ward are separate subdivisions.

Section 584 deals with the filing of the petitions for a referendum election and their publication by the registrar of voters in the official journal of the parish or the municipality, as the case may be. Although this section speaks of “multiple petitions for each ward or portion thereof”, the words “portion thereof” do not convey the meaning that the election may be held in an unincorporated portion of the ward only. They mean that multiple petitions in a ward-wide election may come from any portion of the ward and were inserted in the statute to facilitate the circulating of the petition and to make it more convenient to obtain the required percentage of signatures. The portion of this section dealing with expenses means that, if the election is ward-wide, the police jury bears the expense of publication in the official journal of the parish, and, if it is called by the governing authority of a municipality, the municipality bears-the expense of publication in its official-journal.

The relators further argue that, even though we conclude that there has not been a compliance with the statute by the police jury in calling and holding the election for the unincorporated portion of Ward 4, the election should not be invalidated because at approximately the same time the governing authority of the municipality in this ward, the City of Shreveport, called and held a local option election there. It is-their contention that as a result of these two elections, one called by the police jury and the other by the governing authority of the municipality, the identical issues were submitted to, and were voted upon by, the qualified electors in the entire ward, and that consequently there has been no-substantial noncompliance with the statute. This argument cannot prevail. The electors of the City of Shreveport in voting at the municipal election called by the governing authority of the city voted on the issues presented for the municipality only and not on a ward-wide basis, and these electors petitioned for a municipal election and not for a ward-wide election. Under these circumstances the two elections could never be considered the same as a ward election.

For the reasons assigned, the judgment of the Court of Appeal, Second Circuit, is affirmed. Relators are to pay all costs insofar as allowed by law.