118 So. 2d 879 | La. | 1960
The plaintiff, Food Town, Inc., having been denied permits for the sale of beer and liquor by the Town of Plaquemine, resorted to court proceedings, as authorized in such cases by R.S. 26:104 et seq., seeking judgment decreeing that the said permits be issued to it under the provisions of the town’s ordinance No. 562, claiming that it was in the light of these provisions, and after receiving assurances that beer and liquor permits were available, that it purchased the site for its new super market and undertook constructon of the building; alternatively, plaintiff asked that Ordinance No. 570, adopted on July 30, 1956,
While no motion has been filed to dismiss this appeal or transfer it to the Court of Appeal, and appellate briefs were regularly filed and arguments offered on the merits, the Court sua sponte notes its lack of jurisdiction. No monetary amount is involved;
For the foregoing reasons it is ordered that this appeal be transferred to the Court of Appeal, First Circuit, provided the record is filed in that court within 30 days from the date upon which this decree shall become final, otherwise the appeal shall be dismissed. The costs incurred in this Court shall be paid by appellants.
. Section 7 of that Ordinance prohibited the sale of liquors having an alcoholic content of more than 3.2 per cent by volume on premises situated within three hundred feet of a school, “provided that should said person, firm or corporation applying for said permit file with his application for a permit the written consent of * * * the governing authority of any * * * school within said distance, it shall then be left to the discretion of the Mayor and Board of Selectmen to grant or refuse said permit. * * •" gee. 11, repealing ordinances
. It appears that plaintiff sought without success to procure formal consent of the School Board — although it did obtain the written consent of many persons, including individual members of the said Board.
. The State law referred to is found in R.S. 26:80, with emphasis by the trial judge on the last sentence: “Governing authorities of parishes and municipalities may enact ordinances to prohibit the conduct of alcoholic beverage businesses within a certain distance of a parish or municipal public playground or of a building used exclusively as a regular * * * school * * ♦. No state or local permit shall he issued, in contravention of any such ordinance.”
.While an effort was made to show the loss to plaintiff through its president’s estimation of the gross profits that would have been made had it had'this permit— and which he fixed at $4,972.89 — he admitted on cross-examination this would at best be “purely guess work.”