188 La. 902

#### PENNIX et al. v. WEBSTER PARISH POLICE JURY.

No. 34415.

Supreme Court of Louisiana.

Nov. 29, 1937.

Rehearing Denied Jan. 13, 1938.

A. S, Drew, of Minden, for appellants.

Robert F. Kennon, of Minden, for ap-pellee.

ODOM, Justice.

By ordinance adopted February 2, 1937, the Police Jury of Webster Parish called a local option election to be held in ward 3 of that parish to take the sense of the qualified electors therein on the question "whether or not the business of selling alcoholic and intoxicating liquors should be licensed or permitted.”

The specific proposition submitted to the electors was printed on the ballot, which was in the following form:

> “1: For licensing and permitting the business of selling alcoholic and intoxicating liquors. [J]

> “2: Against licensing and permitting the business of selling alcoholic and intoxicating liquors. Q

> “Notice to Voters: If you favor permitting the sale of alcoholic and intoxicating liquors in Ward Three, place a.cross in the square opposite number "1” above. If *you*are against the sale of intoxicating liquors in Ward Three, place a cross in the square opposite number *“2”.” ■*

At the election, which was held on March 16, a majority voted against the issuance of licenses for the sale of intoxicating liquors. After the results of the election were promulgated, these plaintiffs, who alleged that they were engaged in the business of selling intoxicating liquors in ward 3 of Webster parish, brought this suit to set aside the election. They allege that the ordinance calling the election, the proclamation issued by the president of the police jury giving notice that the election would be held, the election itself, and the ordinance promulgating the results thereof were all illegal, null, and void, and pray for judgment so decreeing. The police jury answered, setting up that the entire proceeding was regular and in due form. There was judgment rejecting plaintiffs’ demands and dismissing their suit, from.which judgment they appealed.

Plaintiffs in their petition urge many objections to the proceedings leading- up to the election. But these seem to have been abandoned. The question before us is narrowed down to this: Did the proposition submitted to the voters meet the requirements of Act No. 17, First Extra Session of 1935, which was the Local Option Law under which the election was held?

This act, which is the present Local Option Law, provides that parishes, wards, and municipalities of the state may deter*391mine by ballot: “Whether or not alcoholic or intoxicating liquors, as herein defined, shall be * * * sold * * * otherwise than when prescribed by a licensed physician as a medicine.”

In section 1 it is provided that, if at an election held for that purpose, a majority of those voting determine that the business of manufacturing, selling, etc., of “alcoholic or intoxicating liquors as defined in Section 2 of this Act” shall not be licensed or permitted, then “such business shall not be therein licensed or permitted.”

According to section 2 of the act, the words “alcoholic or intoxicating liquors,” as used in the act, shall be deemed and held to include:

> “(a) Beer, porter, ale, fruit juices, wine, or other alcoholic liquors, of an alcoholic content greater than one-half of one per centum of alcohol by volume, but not exceeding six per centum of alcohol by volume ;

> “(b) Malt, vinous, spirituous, alcoholic, or intoxicating liquors containing more than six per centum of alcohol by volume.”

Section 2 provides also: “That at any election held under the authority of this Act propositions in respect to the traffic .in all such liquors defined in the above paragraphs (a) and (b) of this section, or in respect to either those defined in paragraph (a) or those defined in paragraph (b), may be submitted to the electors.”

The police jury, as shown by the ordinance and the form of the ballot, submitted to the electors one question, which was whether they were for or against “licensing and permitting the business of selling alcoholic and intoxicating liquors”.

Clearly, this proposition was broad enough in its'terms to include, and did include, “alcoholic or intoxicating liquors” of every kind and description mentioned in section 2 of the act, whether under paragraph (a), as beer, porter, ale, fruit juices, or wine having an alcoholic content greater than one-half of 1 per cent, but not exceeding 6 per cent, of alcoholic content by volume, or ' under paragraph (b), as malt, vinous, spirituous, alcoholic, or intoxicating liquors containing more than 6 per cent, of alcohol by volume. '

Counsel for the police jury argues that the submission of such an all-inclusive proposition to the voters is authorized by the act, because it says that at any election held under the act the propositions in respect to traffic “in all such liquors defined in the above paragraphs (a) and (b)” may be submitted; that the term “all such liquors defined in the above paragraphs (a) and (b)” means and was intended to include “alcoholic or intoxicating liquors” of every character and description, which, expressed in other words, was the proposition submitted to the voters in this case.

But counsel for plaintiffs contends that where a police jury or a municipal council intends to submit to the electors the question whether or not “alcoholic or intoxicating liquors” as defined by the act, which definition includes all the different kinds of liquors included in paragraphs (a) and (b) of section 2 of the act, may be sold, it is necessary to submit such an all-inclusive proposition under two separate headings, just as'they, are set out in the act, to wit:

> “(a) Beer, porter, ale, fruit juices, wine, or other alcoholic liquors, of an alcoholic content greater than one-half of one per centum of alcohol by volume, but not exceeding six per centum of alcohol by volume;

> “(b) Malt, vinous, spirituous, alcoholic, or intoxicating liquors containing more than six per centum of alcohol by volume.”

In other words, that the proposition submitted should be so stated as to give the voters opportunity of voting on each separately.

It is our opinion that the proposition submitted to the voters in this case was within the meaning of the act. The voters were asked whether they favored the issuance of license for the sale of “alcoholic and intoxicating liquors.” “Alcoholic or intoxicating liquors,” as defined by the act, include all kinds of alcoholic b'everages, both so-called “soft drinks” and “hard liquor.” The act says that the question whether traffic in “all such liquors defined” in the act may be submitted, and the general term “alcoholic and intoxicating liquors” means and includes every kind of liquor mentioned in the act.

It is not suggested that the voters were deceived or misled by the ordinance or the form of the ballot submitted to them. The act prescribes no form of ballot. If the ordinance and ballot fairly apprised the electors of the nature and scope of the proposition submitted, and we think they did, these plaintiffs have no valid ground of complaint. Police Jury v. Descant, 105 La. 512, 29 So. *976;*Kelly et al. v. Rapides Parish Police Jury, 184 La. 903, 168 So. 96; *392Drew v. Town of Zwolle, 185 La. 867, 171 So. 59.

There is no municipality in ward 3 of Webster parish, and therefore the provisions of the second paragraph, section 4 of the said act, with reference to elections in municipalities, have no application here.

Judgment is affirmed.

HIGGINS, J., absent.

On Petition for Rehearing.

PER CURIAM.

In his application for rehearing, counsel for appellant has called our attention to the following erroneous statement made in the opinion: “The Police Jury answered, - setting up that the entire proceeding was regular and in due form.”

We erred in so stating. The police jury excepted to the petition on the ground that it set out no cause of action. The, exception was sustained, and plaintiffs’ suit was dismissed.

From the manner in which the case was submitted to this court, both by briefs filed and in oral argument, “it had the appearance of a trial of the case on its merits.” Counsel so states in his application for rehearing. But we feel sure, as counsel now states, that he did not intend to create that impression.

However, the question whether the case was submitted on its merits or on exception of no cause of action is not material, because, as we said in our opinion, the question presented for our consideration was narrowed to one issue, which was: “Did the proposition submitted to the voters meet the requirements of Act 17, First Extra Session of 1935, which was the Local Option Law under which the election was held?”

The question was squarely presented by the pleadings and was argued both orally before the court and in briefs filed by counsel on both, sides. Counsel for appellant in his brief at page 5 said: “But, as this case is directed solely at the authority and rights of the Police Jury and the manner of putting the election machinery in motion, this court certainly has jurisdiction to review this case and this question alone.”

And on page 6 of counsel’s brief he states that: “If the Police Jury of Webster Parish set up the proper election machinery for calling this election and if the election machinery was properly set up, plaintiffs have no further contest over the outcome of the election and this purpose should be considered and plaintiff’s suit considered solely in the light that the Police Jury of Webster Parish failed utterly to set up the proper election machinery to hold a prohibition election in Ward 3.”

The argument was made in brief and by counsel orally before the- court that the reason the election machinery set up by the police jury for holding the election was defective and void was that the proposition submitted on the ballot was not in compliance with the provisions of the act. The proposition submitted, as shown by the ballot, is quoted in the brief, and counsel then say: “No court, by the wildest stretch of its imagination could say that the ballot as submitted to the voters in Ward 3 is in accordance with the definition as defined in Section 2 of Act 17 of the year 1935.”

We considered and passed directly on the point raised and stressed, and further consideration of the question has not caused us to change our views. If the machinery put in motion by the police jury for holding the election was properly set up, then plaintiffs have no cause of action. That was conceded. By holding, as we did, that the proposition submitted by the police jury to the voters met the requirements of the local option act, we approved the holding of the trial judge that plaintiffs’ petition set out no cause of action.

Rehearing refused.