90 So. 751 | La. | 1922
Lead Opinion
The defendant was indicted for keeping a “blind tiger” in the parish of Ter-rebonne on the 23d day of July, 1921, contrary to form of the statute of the state of Louisiana, Act 8 of the Acts of the General Assembly of the Extra Session of the year 1915.
Defendant requested a bill of particulars, and in the bill of particulars furnished the district attorney says:
“That the keeping of a blind tiger, as charged in the indictment herein, consisted of the keeping of a place by the accused where intoxicating liquors were kept for sale, on the date set forth in the indictment; said place being situated in the city of Houma at No.-street, in the parish of Terrebonne, the said parish being a subdivision of the state of Louisiana whore the sale of spirituous, malt, or intoxicating liquor was on said date prohibited by the Eighteenth Amendment of the Constitution of the United States, the said parish of Terre-bonne never having been a dry parish by state or parochial authority.”
The defendant then filed a motion to quash the indictment in this case:
“First, because the district attorney has no right to elect which offense named under Act 8 of the Legislature of 1915, Ex. Sess., the grand jury had in mind when the indictment herein was returned by it; second, because Act 8 of the Acts of 1915, Ex. Sess., has no effect in the state of Louisiana, except in those subdivisions of the state where the sale of spirituous, malt, or intoxicating liquors is prohibited by statute of the state of Louisiana.”
Counsel for defendant contends in his brief that Act 8 of 1915, Ex. Sess., p. 15, is operative only in those subdivisions of the state where spirituous, malt, or intoxicating liquors are kept for sale in violation of the state statute.- In other words, counsel for defendant argues that, notwithstanding the adoption of the Eighteenth Amendment to the federal Constitution, Act 8 of 1915, Ex. Sess., applies only to those parishes in the state which were dry prior to the adoption
Act No. 8 of 1915, Ex. Sess., is entitled:
“ ‘An act to define and prohibit the keeping of a “blind tiger”; to provide for the search of same and for the seizure and destruction of any spirituous, malt, or intoxicating liquor found therein; to provide for punishment of any violators of this act.’
“Section 1. Be it enacted by the General Assembly of the state of Louisiana, that a ‘blind tiger’ is hereby defined to be any place in those subdivisions of the state where the sale of spirituous, malt or intoxicating liquors is prohibited, where such spirituous, malt or intoxicating liquors are kept for sale, barter, or exchange or habitual giving away; or any place in those subdivisions of the state where the sale of spirituous, malt or intoxicating liquors is prohibited, where such spirituous, malt ox-intoxicating liquors are kept for sale, barter, exchange or habitual giving away in connection with any business conducted at such place.” (Italics ours.)
The penalty denounced in section 4 of said act for keeping a “blind tiger” is a fine of not less than $200 nor more than $500, and imprisonment for not less than 30 days nor more than 6 months, and, in default of payment of the fine, imprisonment for not more than 6 months additional.
It is to be observed that section 1 of the “blind tiger” act does not declare, “That a ‘blind tiger’ is hereby defined to be any place in those subdivisions of the state where the sale of spirituous, malt, or intoxicating liquors is prohibited by state statute, or by parochial authority;” but said section declares, “That a ‘blind tiger’ is hereby defined to be any place in those subdivisions of the state where the sale of spirituous, malt or intoxicating liquors is prohibited,” etc., clearly meaning prohibited' by: law, whether state or federal, parochial or municipal.
Prior to the adoption of the federal amendment, the question whether the sale of intoxicating liquors should be permitted or prohibited in any of the subdivisions of the state was a question which was left to a majority of the legal voters of any parish, “ward, town, or village, to be determined by ballot at a special election called for that purpose by the local authorities, It. S. §§ 1211, 2461. There was no such thing in this state at that date as statutory prohibition, or prohibition by state statute, in any of the subdivisions of the state. If a parish, ward, city, town, or village became wet or dry, it was the result of a local option election, and not of special legislative enactment.
In the dry parishes Act 66 of 1902 prohibited the keeping of a grog or tippling shop, or retailing spirituous or intoxicating liquors without previously obtaining a license from the police jury, etc.; and in wet parishes retailers of spirituous, alcoholic, vinous, or malt liquors, and the conductors of barrooms, grogshops, etc., were compelled to take out a license for such business by Act 176 of 1908.
Should we adopt the views of the able
Act No. 8 of 1915 does not pretend to fix the limit of the territory in which prohibition shall prevail in the state, but merely declares that its provisions shall become operative. within the subdivisions of the state in which the sale of intoxicating liquor is prohibited otherwise by law. It is purely an enforcement statute in prohibition districts in the state, after such districts have been established by competent authority, and was clearly intended to be coextensive in its operation with such districts. The members of the General Assembly of 1915 were well aware of the fact that at that date a state statute prohibiting the manufacture and sale of intoxicating liquors would have been valid. Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205. They were also cognizant of the general agitation prevailing throughout the Union for the adoption of an amendment to the federal Constitution prohibiting the manufacture and sale of intoxicating liquors in the United States, and therefore they wisely refrained from limiting, the method by which prohibition should be established in the subdivisions of the state to state statute or to parochial or municipal ordinance; the sole purpose in view being the suppression of the “blind tiger” as a public nuisance, inimical to the public health, morals, and safety in prohibition territory, regardless of the authority establishing such territory.
This court has decided that Act No. 8 of the Extra Session of 1915, commonly known as the “blind tiger” act, although in force when the Eighteenth Amendment to the federal Constitution and the Volstead Act became effective, was not repealed or suspended by such amendment or act of Congress. City of Shreveport v. Marx, 148 La. 31, 86 South. 602.
The provisions of said act therefore have not been enlarged or changed in any respect by the Eighteenth Amendment or the Volstead Act; the effect of the federal amendment being merely to extend the territory in this state to which said act applies, leaving the provisions of said act intact.
The motion to quash is therefore overruled, and it is ordered, adjudged, and decreed that tbe judgment appealed from be annulled, avoided, and reversed, and it is now ordered that this case be remanded to tbe lower court to be proceeded with in due course and according to law.
Concurrence Opinion
(concurring). Although I do not concur in all that is said in tbe opinion submitted in this case, particularly with regard to Act 66 of 1902, I concur in tbe result, because of tbe precise language of section 1 of Act 8 of 1915, defining a ‘blind tiger. Tbe definition is:
“Any place in those subdivisions of tbe state where the sale of spirituous, malt or intoxicating liquors is prohibited, where such spirituous, malt or intoxicating liquors are kept for sale, barter, exchange or habitual giving away.”
According to tbe statute, therefore, any place or subdivision where tbe sale of intoxicating liquors is prohibited, in this state, is an abiding place for blind tigers. It matters not whether tbe prohibition against tbe selling of tbe liquors was brought about by municipal or parochial ordinance, or by state or federal statute.
When tbe statute of 1915 was enacted, prohibition was not state-wide, but prevailed in some of the parishes, wards and municipalities, by virtue of parochial or municipal ordinances enacted pursuant to the local option law. Tbe Legislature bad, by sections 1211 and 2778 of the Revised Statutes, as amended by Act 76 of 1884 and by Act 221 of 1902, delegated to tbe police jury of each and every parish, and to tbe municipal council of each and every city, town and village, tbe author! ty to adopt local prohibition by a majority vote of tbe electors of tbe parish or municipality. When tbe statute of 1915 bad gone into- effect, before the advent of national prohibition, any proprietor of an establishment where intoxicating liquors were kept for sale, barter or exchange or habitual giving away, in prohibition territory, was guilty of keeping a blind tiger, whether tbe prohibition was by parochial or by municipal ordinance. There were also many local or special statutes establishing prohibition within prescribed zones around specified schoolhouses. And there was, while the government was engaged in war, a dry zone, having a radius of 25 miles, around Camp Beauregard. See Act 20 of 1918. There was also a statute prohibiting the sale of intoxicating liquors within 300 feet Horn each and every church and each and every school where children
My opinion is that, if we should hold that the statute of 1915 is not in effect where prohibition did not prevail before the Eighteenth Amendment and the National Prohibition Act came into effect, we would be constrained to say that the statute of 1915 was entirely superseded and nullified by the Eighteenth Amendment and the National Prohibition Act; because prohibition throughout the state, to-day, prevails, not by virtue of any of our local laws or ordinances, but by virtue of the Eighteenth Amendment and the National Prohibition Act, which have superseded all of the local statutes and parochial and municipal ordinances that had already established prohibition in prescribed zones or spots.
We have thrice decided that the act of 1915, denouncing blind tigers, was not superseded or repealed by the Eighteenth Amendment or the National Prohibition Act, in those parts of the state where prohibition prevailed before the adoption of the Eighteenth Amendment. See City of Shreveport v. Marx, 148 La. 31, 86 South. 602; City of Lake Charles v. Joe Rose, 149 La. 647, 89 South. 884; and State v. Fannie Edwards (No. 25,005) 92 South. —.
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