49 So. 1011 | La. | 1909
The defendant was indicted by the grand jury for the parish of Vermilion charged with having unlawfully and willfully retailed spirituous liquors without then and there previously obtaining a license therefor from the police jury of Vermilion, and without then and there previously obtaining a license therefor from any town or city authorities.
He was found guilty by the jury on April 16, 1909, and sentenced by the court to pay a fine of $500, and, in default of payment of said fine, to be incarcerated in the parish jail for a term of 6 months, and to be incarcerated in said jail for a term of 90 days.
On the 16th of April, 1909, before the case was taken up for trial, the defendant filed a motion to quash the indictment, which motion was overruled and a bill of exceptions was reserved. The motion referred to was as follows:
“State of Louisiana v. Paul H. Bailey.
“Selling Liquor Without a License.
“Into the court comes Paul H. Bailey made defendant in the above-entitled and numbered cause, and moves to dismiss said cause and to quash the indictment therein for the following reasons, to wit:
“That he has violated no criminal statute of the state of Louisiana. That the only statutes of the state of Louisiana in effect to-day denouncing the selling of liquors without a license are section 3 of Act No. 176, p. 238, of 1008, and section 8 of Act No. 107, p. 163, of 1902.
“That the provisions of neither of the aforementioned statutes apply to or have effect in the parish of Vermilion, La., wherein the venue of the offense charged is laid, for the reason that there is no license granted or imposed for the selling of intoxicating liquors in said_ parish, the police jury of said parish of Vermilion by ordinances adopted August 10, 1908, having ordained that ‘from and after January 1st, 1909, no license for the sale of intoxicating liquors within the limits of Vermilion Parish shall be granted.’ * * * That section 3 of Act No. 176 of 190S is inoperative and ineffective in the parish of Vermilion as in section 14 of said act is declared that this act shall only apply to cities, towns, villages, and parishes of the state where the sale of liquor is permitted.
“That section of Act No. 107 of 1902 is inoperative and ineffective in the parish of Vermilion. La., as said section has reference to parishes and municipalities where a ‘license tax is imposed for the retailing of spirituous liquors.’
“Defendant avers that he has been informed by the district attorney of the Seventeenth judicial district that the indictment in this case was based on section 910 of the Revised Statutes. If this be true, the defendant alleges that' said seclion 910 of the Revised Statutes is repealed by the provisions of section 8 of Act No. 107, p. 163, of 1902. The said Act No. 107, p. 165. of 1902. in section 13 thereof provides that all laws and parts of law's in conflict therewith or inconsistent with said act be and the same are hereby repealed. Wherefore, the premises considered, he prays that the above numbered and entitled cause be dismissed, and that the indictment returned therein be quashed.”
The defendant is in error in supposing that the only statutes bearing upon the selling of liquors without a license were Act No. 107 of 1902 and Act No. 176 of 1908. Section 910 of the Revised Statutes as amended by Act No. 66, p. 93, of 1902, was then in full force. It was held in State ex rel. Jefferson v. Gray, 111 La. 853, 35 South. 952, that Act No. 66, p. 93, of 1902, was not repealed by Act No. 107 of that year; in other words, that section 910 of the Revised Statutes was not repealed by Act No. 107, as Act No. 66 of 1902 was but the amendment of section 910 of the Revised Statutes.
The only laws or part of laws which were repealed by section 13 of Act No. 107 were those which, if not repealed, would have the effect of interfering with the provisions
The judgment appealed from is correct, and it is hereby affirmed.