City of Lafayette v. Elias

HAMLIN, Justice ad hoc. In the exercise of our supervisory control (Article VII, Sec. 10, Louisiana Constitution of 1921, LSA), we granted writs to review a judgment of the City Court of the City of Lafayette, which quashed an affidavit charging the defendant with violating Ordinance 316 of the City of Lafayette, in that he sold a bevérage of a low alcoholic content to a minor. The facts of record show that the defendant, operator of Blue’s Bar, was charged by two affidavits with violating Ordinance 316, Section 13, of the City of Lafayette, Louisiana, in that he opened his establishment and place of business on Sunday, September 2, 1956, and unlawfully sold therefrom seven cans of Jax Beer to a person under the age of twenty-one years —a juvenile sixteen years of age. The defendant filed a motion to quash the affidavits on the grounds that Ordinance No. 316 of the City of Lafayette was an attempted usurpation of a field of legislation already occupied by the State, and [703] that the enactment of said ordinance exercised a power superior to that of the State of Louisiana on the same subject matter, contrary to the law and Constitution of the State of Louisiana. Alternatively, the defendant averred that Ordinance 316, as applied to the present prosecution, had been legally and judicially overruled and repealed. Defendant then filed an amendment to the motion to quash, averring that the City of Lafayette, by the two prosecutions, was attempting to split up a crime and prosecute it in parts. He prayed that the City of Lafayette be ordered to elect which of the two crimes it intended to prosecute. Ordinance No. 316, Section 13, of the City of Lafayette, reads: “That it shall be unlawful for any dealer, manufacturer, wholesale dealer, jobber or retail dealer to sell any of said liquors or beverages to any person below the age of 21 years, or to sell any of said liquors or beverages between the hours of midnight of Saturday and midnight of the following Sunday.” The trial judge upheld the ordinance, insofar as it restrained the sale of liquor on Sunday — a violation of which was the subject matter of one affidavit — but he quashed the affidavit which charged the defendant with having sold seven cans of Jax Beer to a minor. He held that in forbidding the sale of liquors or beverages to a person under twenty-one years of age, the ordinance contravened the limitation of LSA-Revised Statutes 26:285, which provides : “No person holding a retail dealer’s permit and no servant, agent, or employee of the permittee shall do any of the following acts upon the licensed premises: “(1) Sell or serve beverages of low alcoholic content to any person under the age of eighteen years.” The City of Lafayette reserved a bill of exceptions to the ruling of the trial judge. The only question presented for our determination is — Can a municipality validly enact a penal ordinance prohibiting the sale of beverages of a low alcoholic content to all persons under the age of twenty-one years, when the State law forbids such sales only to persons under the age of eighteen years ? The Charter provisions of the City of Lafayette, Act 310 of 1914, Sec. 4, amended by Act 52 of 1936, recite: “That the Board of Trustees * * * shall have full power to adopt all ordinances that may be deemed proper: “a. To regulate and preserve the peace and good order of the city, to exercise the police power, and to provide and maintain its cleanliness and sanitary condition. [705] ********* “j. To regulate and prescribe limits for tippling shops, saloons, barrel houses, dram shops, and gambling houses.” (Italics ours.) The grant of police power to the City of Lafayette in its charter is very broad. Its governing authorities are delegated the right to regulate and prescribe limits for tippling shops and saloons without any qualification or limitation.1 Our organic law has recognized that the business of selling intoxicating liquors is a lawful calling, but, because of its attendant evils, it has seen fit to delegate to municipalities wide powers for its regulation. State ex rel. Galle v. City of New Orleans, 113 La. 371, 36 So. 999, 67 L.R.A. 70. In the very recent case of City of Baton Rouge v. Rebowe, 226 La. 186, 75 So.2d 239, 241, this Court stated: “The proposition is generally accepted that there is no inherent right in a citizen to sell intoxicating liquor, and the business may be permitted under conditions such as will limit to the utmost the evils associated therewith. It is recognized that municipalities have authority, under the police power generally delegated to them by the Legislature, to enact ordinances for the regulation of the retail liquor business to the extent necessary for the protection of the public health, morals, safety and peace. State v. Gardner, 198 La. 861, 5 So.2d 132; City of DeRidder v. Mangano, 186 La. 129, 171 So. 826; * * *” See, City of New Orleans v. Smythe, 116 La. 685, 41 So. 33, 6 L.R.A.,N.S., 722. In LSA-Revised Statutes 26:494, we find: “Except as limited by the provisions of this Chapter the various subdivisions of the state may regulate but not prohibit, except by referendum vote as provided by Chapter 3, this Title or by legally authorized zoning laws of municipalities, the business of wholesaling, retailing, and dealing in alcoholic beverages. However, no parish or municipality shall, in the exercise of its police power, regulate the business of selling such beverages more than is necessary for the protection of the public health, morals, safety, and peace. Local subdivisions, in adopting these regulatory ordinances, may provide, in addition to the ordinary penalties authorized by law for their violation, provisions which subject the permittee to having his permit [707] suspended or ■ revoked in the manner provided by law for the suspension or revocation of permits.” . We have held that a municipality cannot, by ordinance, permit what a statute forbids or forbid what a statute expressly permits. State ex rel. Sutton v. Caldwell, 195 La. 507, 518, 197 So. 214; City of Baton Rouge v. Rebowe, supra; City of Lafayette v. Deep, 160 La. 5, 106 So. 654. However, in State ex rel. Sutton v. Caldwell, supra, we also held: “ * * ■ * a municipality with subordinate authority to legislate on the subject may make such new and additional regulations in furtherance of the purpose of the state law as may seem fit and appropriate to the necessities of the locality and be not in themselves unreasonable. * * *” [195 La. 507, 197 So. 218.] The City of Lafayette contends that the judgment of the City Court of Lafayette, as rendered, constitutes a limitation upon the regulatory authority of municipalities acting pursuant to the authority delegated to them by the Legislature of the State of Louisiana; and, that if this interpretation is to be accepted as a correct one reflecting the true intent of the legislative will, it would, in effect, render every municipality helpless and impotent to enact ordinances for the general welfare of its people. The City of Lafayette further avers that if a municipality has within its power the right to regulate the time at which such places may operate, the location of such establishments, and the age of persons that may be employed therein, it logically follows that a municipality may regulate the age of persons to whom intoxicating beverages may be sold — -where such ordinance has for its purpose the protection of the public health, morals, safety, peace, and good order of the community. It relies on the cases of City of Baton Rouge v. Rebowe, supra; City of Lafayette v. Deep, supra; City of De Ridder v. Mangano, 186 La. 129, 171 So. 826;2 and Corporation of Minden v. Silverstein & Dittmer, 36 La. Ann. 912.3 [709] The City of Lafayette has an institution of higher learning, Southwestern Louisiana Institute, within its geographical limits. Thousands of boys and girls from within and without the State are attracted to this institution each year, in quest of knowledge to prepare them for their life’s work. When these students are sent so Southwestern Louisiana Institute there becomes imposed upon the City of Lafayette a duty not only to the students but to their parents. The majority of young men and women presently enrolled at this institution are below the age of twenty-one years. They arrive free from the influence of their families and churches, and their decisions become their own. They are suddenly thrown together, with naturally different dispositions and characters, and there is incumbent upon the City of Lafayette the duty to see that they are not exposed to anything that will affect their health, morals, safety, peace, or good order. It has been repeatedly held that there are evils connected with the sale of liquor. City of Baton Rouge v. Rebowe, supra; City of De Ridder v. Mangano, supra; City of New Orleans v. Smythe, supra; State ex rel. Galle v. City of New Orleans, supra. We find that Ordinance 316, Sec. 13, of the City of Lafayette, is a regulation appropriate to the necessities of the locality and that it is not in itself unreasonable. State v. Morton, 182 La. 887, 162 So. 718; State ex rel. Sutton v. Caldwell, supra. In view of the provisions of the Charter of the City 'of Lafayette, hereinafore discussed, reason dictates and justice demands this finding in the instant case and under these circumstances, in order that the public health, morals, safety, peace, and good order of the students at Southwestern Louisiana Institute and of the City of Lafayette shall be insured. For the reasons assigned, the judgment of the trial court quashing the affidavit filed against the defendant, Wilfred Elias, is reversed and set aside, and it is now ordered that the cause be remanded for trial. Footnotes [1] In City of Lafayette v. Deep, 160 La. 5, 106 So. 654, 655, this Court stated: “Moreover, there was no necessity for special and particular legislative grant to enable the city to pass the ordinances in question, since it bad the authority under its inherent police power to suppress the sale of intoxicating liquors within its limits. * * * ” [2] There the Supreme Court upheld the validity of an ordinance making it unlawful for the proprietor of a barroom to employ or permit a woman or girl to work in the barroom. [3] The syllabus of this case correctly states: “A legislative grant to a municipal corporation to ‘pass all such ordinances, rules and regulations as they may. deem necessary for the police and government of the said town,’ and ‘to have ex-elusive control of the license and sale of spirituous or intoxicating liquors,’ implies as a necessary incident thereto the power to pass and enforce an ordinance to prohibit the sale of liquors within corporate limits on Sunday, as a police regulation. The exercise of such power is not amenable to the constitutional inhibition against the establishment of any religion by law, or to any other constitutional limitation to legislation.”