Village of Elton v. Buttrell

78 So. 104, 142 La. 1025, 1918 La. LEXIS 1475

Opinion

LECHE, J.

Defendants, H. L. Buttrell, Duval McFarland, J. T. McGeary, J. M. Haney, and J. D. Sledge were convicted of gambling by “playing the game of draw poker for money.”

The ordinance under which defendants were prosecuted and convicted is not shown to have been adopted by a yea and nay vote and the absence of this formality is fatal to its validity. Marthaville v. Chambers, 135 La. 767, 66 South. 193; De Ridder v. Head, 139 La. 840, 72 South. 374.

Counsel for the village of Elton refer us to Ruston v. Lewis, 140 La. 777, 73 South. 862, and to State v. Joseph, 139 La. 734, 72 South. 188. But these two decisions in no manner conflict with the cases of Head and Chambers, and only hold that formalities, which are not expressly required to be entered on the minutes, will, in the absence of evidence to the contrary be presumed to have been observed.

Under section 33 of Act 136 of the General. Assembly of 1898, it is mandatory that ordinances of villages be adopted by a yea and nay vote, and that such vote be entered upon the minutes.

Judgment appealed from is reversed, and defendants are discharged.