(106 So. 654)

No. 27424.

#### CITY OF LAFAYETTE v. DEEP.

(Nov. 30, 1925.)

*(Syllabus by Editorial Staff.)*

1. Intoxicating liquorsx&wkey;ll—City held authorized to prohibit and penalize sales of intoxicating liquor.

City incorporated by Act No. 310 of 1914, specially empowered to exercise all legislative powers pertaining to proper government and to suppress nuisances, *held*authorized to adopt ordinance prohibiting and penalizing sales of intoxicating liquor, though penalties imposed were in excess of those fixed in, Hood Bill (Act No. 39, Ex. Sess. of 1921).

2. Intoxicating liquors <&wkey;IO(3)—City has inherent power without specific grant to suppress sale of liquor.

City under its inherent police power, and without specific grant of authority, may suppress sale of intoxicating liquor within its limits, which power is not abrogated by Hood Bill (Act No. 39, Ex. Sess. of 1921), or National Prohibition Act (U. S. Comp. St. Ann. Supp. 1923, § 10138% et seq.).

Appeal from City Court of Lafayette; A. M. Martin, Judge.

Abraham Deep was convicted of selling intoxicating liquor in violation of ordinance of City of Lafayette, and he appeals.

Affirmed.

John L. Kennedy, of Lafayette, and Waldo H. Dugas, for appellant.

George P. Lessley, of Lafayette, for appellee.

THOMPSON, J.

The defendant appeals from a sentence to pay a fine of $100 and in default of payment of the fine to be imprisoned for 30 days, for selling intoxicating liquor for beverage purposes within the limits of the city of Lafayette.

The prosecution was had under Ordinance No. 120, as amended by Ordinance No. 121, adopted by the board of trustees of said city in 1923.

The ordinances in all substantial respects, except as to penalties, conform to the provisions of Act 39 of 1921, known as the Hood Bill.

The penalty imposed by the original ordinance for selling intoxicating liquor was a fine of not less than $100 nor more than $500, or imprisonment for not less than 60 days, for the first offense.

By the amended ordinance the fine was made not less than $99 nor more than $100, and imprisonment for not less than 30 days.

It will be seen that the fine imposed on the defendant is the maximum provided in the amendatory ordinance, but the term of imprisonment was only in the alternative.

Before pleading to the charge, the defendant filed a motion to quash on the grounds: (1) That the charter of the city of Lafayette confers no power upon the city to legislate concerning the subject-matter; (2) that the Ordinance No. 120 was illegal, in that section 4 undertakes to penalize the acts denounced thereby by assessing greater fines and longer terms of imprisonment than the charter of the city authorizes for violation of its ordinances ; (3) that Ordinance No. 121, amendatory of Ordinance No. 120, is illegal, because it undertakes to amend an ordinance which itself is null and void; and (4) that Ordinance No. 121 is null and void, because the minimum punishment provided is in excess of that imposed by Act 39 of Ex. Sess. 1921.

[1] The overruling of the motion to quash is made the basis for this appeal, but the only question discussed in brief of defendant’s counsel is as to whether the city of Lafayette is authorized by its charter to enact the ordinance making it a misdemeanor to sell intoxicating liquor for beverage purposes within the limits of said city.

The city of Lafayette was incorporated by Act 310 of the Legislature of 1914.

The charter provides that the board of trustees of said city shall consist of the three trustees to be elected under the charter, who, *7in addition to the other powers granted by the charter, shall be vested with all the legislative powers of the city not otherwise provided in the charter.

The charter specially authorizes the said board of trustees to adopt all ordinances that may be deemed proper to regulate and preserve the peace and good order of the city, to pass by-laws and ordinances in regard to disorderly conduct and nuisances generally, or anything relating to the good government of the city, and impose such fines and penalties for a breach of the by-laws and ordinances and of the public peace as it may deem proper, the fine not to exceed $100, and the term of imprisonment not to exceed 30 days.

It is very clear, under the terms of the charter as above indicated, the city of Lafayette was empowered to exercise all the legislative powers pertaining to the proper government of the city and to enact all ordinances deemed necessary to preserve the peace and good order of the city and to suppress nuisances generally.

At the time the city was incorporated, the sale of intoxicating liquor was permitted by the state under a license duly obtained from the proper local authorities.

The privilege of selling intoxicating liquor was not prohibited and could not be prohibited by the city except on a vote of the electors thereof.

Since the charter was adopted, the people of the United States and of this state, through their proper representatives, have prohibited the sale of intoxicating liquors for beverage purposes, thereby declaring in no uncertain terms that the sale of such liquors, except as specially permitted, is a public nuisance. The ordinances under consideration are therefore well- within the power specially granted to the city of Lafayette to prohibit nuisances generally and to preserve the peace, good order, and public morals.

[2] Moreover, there was no necessity for special and particular legislative grant to enable the city to pass the ordinances in question, since it had the authority under its inherent police power to suppress the sale of intoxicating liquors within its limits. This power was not abrogated or curtailed by the national prohibition law nor by the Hood Bill.

The reason the city of Lafayette could not declare the sale of liquors a nuisance and pass ordinances to suppress it prior to the Eighteenth Amendment, and the laws enacted pursuant thereto, was because of the fact as already stated that-the state permitted such sale and the city could not prohibit that which the state licensed and permitted, except in the manner pointed out by the statutes—on a vote of the electors.

That reason no longer exists and the municipalities, in the exercise of their police power, may prohibit that which the nation and state has prohibited.

A quite similar question was presented in-City of Lake Charles v. Rose, 149 La. 647, 89 So. 884, where the defendant was convicted for running a blind tiger under a city ordinance providing for the suppression of a blind tiger, or place for the unlawful sale of intoxicáting liquor, as a nuisance.

There was no special authority to the city of Lake Charles to pass- such an ordinance conferred by the Act No. 8 of Ex. Sess. 1915 which prohibited the operation of a blind tiger, but this court held that the ordinance was within the police power of the city and that the city had not been deprived of that' power by the Eighteenth Amendment and the National Prohibition Act (U. S. Comp. St. Ann. Supp. 1923, § 10138% et seq.).

There is certainly nothing in the Hood Bill which assumes, directly or indirectly, to withhold from municipalities, in the exercise, of their police power, the right to prohibit the sale of intoxicating liquors for beverage *9purposes and to provide for penalties against such, violations.

We have considered the other questions -raised in the motion to quash, though, as already said, they are not discussed in defendant’s brief.

The penalty provided in the amendatory ordinance is within the limits prescribed by the city’s charter and the penalty imposed on the defendant does not exceed that limit.

For the reasons assigned, the decision of the lower court overruling the motion to quash is affirmed.