
    STATE of Louisiana v. Neamen RISER.
    No. 55449.
    Supreme Court of Louisiana.
    Feb. 24, 1975.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James Lynn Davis, Dist. Atty., for plaintiff-appellant.
    John P. Godfrey, Many, for defendant-appellee.
   BARHAM, Justice.

Defendant Neamen Riser was charged by bill of information with possessing intoxicating liquor for sale in Ward 1 of Sabine Parish “where the sale of intoxicating liquor is prohibited by law.” A motion to quash the information, based on this Court’s decision in State v. Sissons, 292 So.2d 523 (La.1974), was filed by the defendant. Thereupon, the State amended the bill of information to charge Neamen Riser with having committed the offense of possessing intoxicating liquor for sale in violation of La.R.S. 26:158. An amended motion to quash was filed in response to the new bill of information. Following a hearing on the motion, the judge sustained it. The State has appealed. We affirm the trial judge’s decision to sustain the motion to quash.

Our decisions in State v. Sissons, supra, and in State v. Wright, 305 So.2d 406 (La.1974), on our docket, decided December 2, 1974, control the disposition of this case. In both of those cases we struck down parish ordinances because we found that they exceeded legislative delegation of power in three respects. The ordinance in the case before us is infirm for the same three reasons:

1. It is an exercise of a local option on a parish-wide basis, in contravention of La. R.S. 26:582 which restricts the exercise of local option exclusively to wards and incorporated municipalities.

2. The penalty provisions are in excess of those permitted under La.R.S. 26:595.

3. It purports to prohibit beverages with an alcoholic content which may not be regulated by local option under La.R.S. 26:588.

We therefore hold the ordinance in this case invalid. The State’s amendment of the bill of information was evidently an attempt to circumvent prosecution under an ordinance which was invalid under Sissons. Instead, the State sought to prosecute the defendant under a state statute, La.R.S. 26:158, which provides:

“No person shall sell or keep for sale any alcoholic beverages for beverage and business purposes in any subdivision of the state where the sale of alcoholic beverages is prohibited by law or ordinance. * * *” (Emphasis supplied).

However, this attempted circumvention of Sissons must fail because in Ward 1 of Sabine Parish the sale of intoxicating beverages was not prohibited by any ordinance that was valid.

For the reasons assigned, we affirm the trial judge’s action in sustaining the motion to quash.

SANDERS, C. J., dissents with written reasons.

SUMMERS, J., dissents and assigns reasons.

MARCUS, J., dissents and assigns reasons.

SANDERS, Chief Justice

(dissenting).

I adhere to my dissents in State v. Sissons, La., 292 So.2d 523 (1974) and State v. Wright, La., 305 So.2d 406 (1974), the decisions upon which the majority relies.

MARCUS, Justice

(dissenting).

I disagree with the majority for the reasons set out in the dissenting opinions in State v. Sissons, 292 So.2d 523 (La.1974) and State v. Wright, 305 So.2d 406 (La.1974).

I respectfully dissent.

SUMMERS, Justice

(dissenting).

This Court’s decisions in State v. Sissons, 292 So.2d 523 (La.1974) and State v. Wright, 305 So.2d 406 (La.1974) are not relevant or material to this case. This prosecution is under the authority of Section 158 of Title 26 of the Revised Statutes, which, except for the penalty provision, provides:

“No person shall sell or keep for sale any alcoholic beverages for beverage and business purposes in any subdivision of the state where the sale of alcoholic beverages is prohibited by law or ordinance.”

The District Attorney specifically advised the defense and the trial judge that the prosecution was based upon that part of Section 158 which made it an offense to sell alcoholic beverages when it was prohibited by “law”. In doing so the prosecutor informed the defense and the court that he was not relying upon a violation of any ordinance, but, to the contrary, was relying upon the fact that the sale of alcoholic beverages was prohibited in Ward 1 of Sabine Parish because the sale by defendant was a violation of Section 158 in that it was made in contravention of “law” —not an ordinance. The “law” relied upon was stated to be Section 74 of Title 26 of the Revised Statutes prohibiting possession or sale of alcoholic beverages exceeding 6% alcohol content by volume without a permit. The pertinent section reads:

“No person shall do any act for which a permit is required by this Chapter or by local authorities acting hereunder unless he holds the proper state and local permit. Each day’s conduct of business by dealer without such a valid, unsus-pended permit constitutes a separate violation of this Chapter.”

Therefore, conceding arguendo that no valid ordinance prohibited the sale of alcoholic beverages exceeding 6% alcohol, the District Attorney made it clear and emphatic that the prosecution did not depend upon such a prohibition ordinance. Instead, he emphasized, that he was depending upon the defendant’s failure to obtain a permit as required by Section 158.

Without expressing a view as to the soundness of the District Attorney’s position in law, it is clear to me that the trial judge’s order sustaining the motion to quash on the authority of State v. Sissons was error. State v. Sissons held that the authority supporting the enactment of local option ordinances was repealed in 1950 and that authority could not be preserved by subsequent legislation; it could only be revived; whereas this case does not involve any ordinance whatsoever. For the same reasons the majority opinion of this Court is also in error. It fails to meet the issue presented and charges the State with “an attempt to circumvent prosecution under an ordinance which was invalid under Sis-sons.”

There is no justification for this charge. It should be clear to this Court that the State Legislature is empowered to require a state “permit” to sell alcoholic beverages and that it has done so by extensive legislation. See La.R.S. 26:71-106. The sale of alcoholic beverages is prohibited unless such a permit is obtained. La.R.S. 26:158.

It is not an “attempt to circumvent prosecution under an ordinance which is invalid” if the District Attorney prosecutes under a valid state “law”. The majority has decided this case on an issue alien to the facts and law of the case.

I respectfully dissent.  