153 So. 676 | La. | 1934
In the year 1917 the police jury of the parish of Ouachita, acting under Act No.
A majority of the qualified voters of the parish having voted to prohibit the sale of intoxicating liquors within its limits, the police jury adopted Ordinance No. 677, making it unlawful, on and after January 1, 1920, to issue any license for the sale in Ouachita parish of intoxicating liquor, or for any one to sell or offer for sale intoxicating liquor within the limits of the parish.
The Eighteenth Amendment was ratified by the thirty-sixth state on January 16, 1919, and took effect on January 16, 1920. This amendment, in its second section, vested in "Congress and the several States * * * concurrent power to enforce this article by appropriate legislation," and in 1921, by Act No. 39 of the Extra Session for that year, the General Assembly adopted "The Hood Bill," which was designed to enforce the Eighteenth Amendment in this state.
Prior to the enactment of "The Hood Bill," there were dry and wet localities in various parts of the state, and prohibition in dry territory had been enforced under Act No.
The Twenty-First Amendment, repealing the Eighteenth Amendment and National Prohibition Act (27 USCA), was duly ratified and became effective on December 5, 1933.
Defendant is charged by information in this case with violating Act No.
It is admitted that defendant, at the time, had a permit or license to sell bonded whisky from the city of West Monroe and from the United States government (the legal effect of these permits or licenses being denied by the state), and had also made application to the sheriff and tax collector for a permit to sell bonded intoxicating liquor, and had been refused.
Defendant filed a motion to quash the information in this case on the ground that Act No.
The motion to quash was overruled by the trial judge. Defendant was tried and convicted, and, from a sentence to pay a fine of $325 and, in default of payment, to serve 30 days in jail, defendant has appealed.
1. The sole issue here involved is one of law, to wit: Whether "The Blind Tiger Act," Act No.
Act No.
It is clear from the provisions of Act No.
The state had delegated to police juries under Act No.
But, when the state enacted "The Hood Bill," Act No.
"The Hood Bill" was a general law of the state. It covered every phase of the liquor traffic. It was state-wide in its operation and effect, and necessarily superseded other statutes on the same subject-matter, in conflict with its provisions and purpose.
In enacting "The Hood Bill," it is manifest that the state resumed the direct exertion of its plenary police power as to intoxicating liquors.
A general, permanent, and stringent prohibition statute was enacted, regardless of the established status of certain parishes as wet, and regardless of any right to referendum in any parish of the state, whether wet or dry, under "The Local Option Law."
There can be no serious doubt but that, with the enactment of "The Hood Bill," "The Local Option Law" passed out of existence, as a statute in conflict with the provisions of the general law on the subject, since the right to referendum, in the matter of the sale or the prohibition of the sale of intoxicating liquors, is not only incompatible with, but absolutely destructive of, the plain, fundamental purpose of "The Hood Bill," to maintain uniformstate-wide prohibition, as an enforcement measure of theEighteenth Amendment, which had already established prohibition, nation-wide in its extent.
The local option election held in the parish of Ouachita in the year 1917, under Act No. *162 221 of 1902, therefore had no legal or valid effect, after the repeal of "The Local Option Law" by "The Hood Bill" in the year 1921.
2. Section 10, the repealing clause of "The Hood Bill," reads as follows: "This Act shall in no way repeal any part of Act No. 8 of the Special Session of the General Assembly of 1915, approved July 9th, 1915, commonly called `The Blind Tiger Act' and Act No. 14 of the Regular Session of the General Assembly of 1916, approved June 19, 1916, commonly called the `Near Beer Act.' All other laws or parts of laws in conflict with the provisions of this Act be and they are hereby repealed."
We are not concerned in this case with "The Near Beer Act."
By Act No.
On December 5, 1933, the Twenty-First Amendment, abrogating the Eighteenth Amendment, was duly ratified, thereby repealing that amendment and carrying with it the Volstead Act of October 28, 1919 (27 USCA).
National Prohibition had also ended at that date.
On December 7, 1933, when defendant was charged with violating "The Blind Tiger Act," Act No.
If "The Blind Tiger Act" was not repealed as a part of "The Hood Bill," in which it was retained as "appropriate legislation," then it lapsed into a state of "innocuous desuetude," as "The Blind Tiger Act," by its own terms, and by the repeated decisions of this court, applied to prohibition territory only, and no such territory existed within the limits of this state on December 7, 1933, when defendant was charged with violating Act No.
Our conclusion is that the trial judge erred in refusing to sustain the motion to quash made by the defendant, as the information filed against him sets forth no crime under the laws of this state.
It is therefore ordered that the conviction and sentence appealed from be annulled and set aside; that the information filed against defendant herein be quashed; and that defendant be discharged from custody and his bond canceled.
ST. PAUL, J., absent.