180 So. 2d 65 | La. Ct. App. | 1965
This is an action by rule for mandamus to compel the defendant Police Jury of Ouachita Parish to issue a beer license in accordance with law. From judgment making the writ of mandamus peremptory and ordering the issuance of the license, the defendant appealed.
Before this court defendant has filed a motion to dismiss the appeal and remand this cause to the trial court. As ground for the motion, defendant has asserted that a local option election, held subsequent to the judgment ordering defendant to issue plaintiff a license to sell beer in Ward 7 of Ouachita Parish, had the effect of declaring Ward 7 dry and that, in accord with the result of such election, defendant has passed an ordinance prohibiting the sale of intoxicating beverages in Ward 7. In answer to the motion to dismiss plaintiffs have filed an opposition admitting the effect of the election and the ordinance prohibiting the sale of intoxicating beverages in Ward 7 but asserting that neither said election nor the ordinance prohibits the sale of 3.2 beer and that plaintiff’s application for a license for the sale of beer contained a provision for permission to sell 3.2 beer.
On the basis of the allegations made in the motion to dismiss and remand and the opppsition thereto, we have concluded that
In Randolph v. Village of Turkey Creek, 240 La. 996, 126 So.2d 341, the Supreme Court declared that a police jury may not, under the authority of a local option election, prohibit the sale of alcoholic beverages containing no more than 3.2% of alcohol by volume. This conclusion was supported by reference to LSA-R.S. 26:588 and numerous authorities cited in the opinion. It is clear that the plaintiffs in this suit are entitled to the issuance of a permit for the sale of beer containing not more than 3.2% of alcohol by volume.
In our opinion, the proper procedure is to remand this case to the Honorable Fourth Judicial District Court in and for the Parish of Ouachita, State of Louisiana, with instructions that judgment be rendered in accordance with the conclusions set forth in this opinion.
All costs for which it may be taxed in accordance with law are assessed against def endant-appellant.