160 So. 75 | La. | 1935
The defendant, A.J. McDonald, appeals from his conviction and sentence for operating a "Blind Tiger" within five miles of the Logansport High School, in the town of Logansport, De Soto parish, where the sale of intoxicating liquor is prohibited by law. The date of the alleged offense was January 26, 1934.
Defendant contends that the statutes on which his prosecution is based have been superseded by subsequent legislation, both federal and state, and, as a consequence, the indictment against him charges no offense known to the laws of the state.
Act No. 8 of 1915, Ex. Sess., defines and prohibits the keeping of a "Blind Tiger." Act No. 73 of 1896 prohibits the sale of intoxicating liquor within five miles of the Logansport High School. Act No. 8 of 1915, Ex. Sess., was invoked by the state in this case to enforce the legislative prohibition within the area surrounding the high school.
The Eighteenth Amendment to the Federal Constitution became effective on January 16, 1920. In the second section of the amendment Congress and the several states were vested with concurrent power to enforce the article by appropriate legislation. Act No. 39 of 1921, Ex. Sess., was enacted by the Legislature for the purpose of enforcing the *552 Eighteenth Amendment in this state. That act operated as the state-wide prohibition statute until it was repealed by Act No. 1 of 1933, Ex. Sess., following the repeal of the Eighteenth Amendment by the adoption of the Twenty-First Amendment, which became effective on December 5, 1933.
Under the express provisions of the tenth section of Act No. 39 of 1921, Ex. Sess., that statute did not repeal Act No. 8 of 1915, Ex. Sess., prohibiting the keeping of a blind tiger. State v. Anding,
And Act No. 8 of 1915, Ex. Sess., was not superseded by the Eighteenth Amendment to the Federal Constitution or by the National Prohibition Act (27 USCA § 1 et seq.). City of Shreveport v. Marx,
Our views in this case are not opposed to those which we expressed in State v. Carter,
"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 uniform state-wide prohibition, as an enforcement measure of the Eighteenth Amendment, which had already established prohibition, nation-wide in its extent."
As we have hereinabove shown, there was no conflict between the provisions of Act No. 73 of 1896 and the provisions of the "Hood Act" and the federal legislation. The "Blind Tiger Act," as we remarked in State v. Carter, at page 163 of 179 La.,
When we said in State v. Carter that no prohibition territory "existed within the limits of this state" after the repeal of the Eighteenth Amendment, the National Prohibition Act, and the "Hood Bill," we overlooked the special statutes prohibiting the sale of intoxicating liquor within certain prescribed distances of a number of churches and schools throughout the state.
For the reasons assigned, the conviction and sentence appealed from are affirmed.
