Opinion
No. 9030.
May 27, 1959. Rehearing Denied July 3, 1959.
APPEAL FROM FOURTH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA, STATE OF LOUISIANA, HONORABLE D.I. GARRETT, J.
Joseph S. Guerriero, Monroe, for appellant.
Haynes L. Harkey, Jr., Monroe, for appellee.
The plaintiff herein made application to the City of Monroe for a permit to sell alcoholic liquors of an alcoholic content of 6 percent or less per volume and of a content exceeding that maximum. The application was opposed by residents of the vicinity where plaintiff sought to establish his retail liquor store. After consideration by the Commission Council, the governing authority of the municipality, the application was rejected, whereupon plaintiff appealed to the district court.
The appeal was attacked in the district court (1) by a motion to dismiss the appeal for failure to file a bond for costs and (2) by a plea of non-joinder. This last contention is predicated upon plaintiff's failure to make parties defendants the Louisiana Board of Alcoholic Beverage Control and the Collector of Revenue of the State of Louisiana. The motion, predicated upon plaintiff's failure to furnish a cost bond, was sustained by the district court. It does not appear that the court either considered or passed upon the merits of the case or the plea of non-joinder. From the judgment thus rendered and signed, plaintiff appealed.
Inasmuch as no bond for costs was filed by plaintiff on his appeal from the action taken by the municipality to the district court, the issue for determination becomes one of the statutory requirement vel non of such a bond. The Alcoholic Beverage Control Law, LSA-R.S. 26:1 et seq., regulates generally the licensing of the sale of liquor. Chapter 1, parts 1 and 3, applies to beverages of an alcoholic content in excess of 6 percent by volume and Chapter 2, parts 1 and 2, to beverages of an alcoholic content of 6 percent or less. The City of Monroe, as evidenced by copy of its ordinance filed in the record, has provided for permits which include beverages of both low and high alcoholic contents.
Local authorities, that is, the police juries as the governing authorities of the several parishes and the governing authorities of municipal corporations, have the authority and responsibility with reference to permits for establishments located within their territorial limits. They may require local licenses and permit fees and, on furnishing the board a certified copy of their ordinances, the Louisiana Board of Alcoholic Control may be required to collect fees levied by such local authorities. LSA-R.S. 26:73. For local permits applications must be filed with the local authorities. LSA-R.S. 26:78. The board, with respect to state permits, and the local authorities, with respect to local permits, may withhold the issuance of permits for statutory reasons, LSA-R.S. 26:84, and for its guidance in the determination by the local authorities to either issue or withhold permits, procedure is provided in LSA-R.S. 26:85, which, so far as pertinent, reads as follows:
"The right to determine what persons shall or shall not be licensed under this Chapter shall be exercised in the following manner:
"A. Municipal authorities and parish governing authorities shall, independently of the board, investigate all applications filed with them for local permits, and shall withhold the issuance of a permit where that action is justified under the provisions of this Chapter. The decision to withhold a local permit shall be made within thirty-five calendar days of the filing of the application. Within that period, the withholding authority shall notify the board in writing that it is withholding the permit and give the reason therefor. Upon receipt of this notice, supported by reasons enumerated in or authorized by this Chapter, the board shall withhold issuance of the applicant's state permit. Within five calendar days after the receipt of the notice from the local authorities, the board shall notify the applicant in writing of the action and shall assign the reasons therefor. Such notice shall be either delivered to the applicant in person or sent to him by registered mail at the business address given in his last application. When so addressed and mailed, it shall be conclusively presumed to have been received by the applicant."
Annual applications are required for renewal permits, which may be withheld or denied for the same reasons and in the same manner as applications for original permits. LSA-R.S. 26:86.
As to the cost of hearings before the board, § 102 of the statute provides:
"In hearings of the board which finally result in withholding the issuance of a permit or in suspending or revoking a permit, the board shall assess the costs of the hearing to the applicant or permittee. The costs are recoverable by the board in any appellate proceeding instituted by the applicant or permittee or in any other judicial proceeding."
The statute contains no provision for the assessment of costs by a local authority at a hearing before it for the obvious reason that no costs have accrued and none are authorized by the statute, such as are prescribed in favor of the Louisiana Board of Alcoholic Control or of the Board of Tax Appeals. The statute provides, however, that the decisions of the boards in withholding, suspending and revoking permits and the decisions of the local authorities in withholding permits are final unless reversed by the courts on appeal. LSA-R.S. 26:103 and 302. The procedure for taking an appeal from the action of the Control Board or from the action of the local authority is found in § 104 of the statute, which reads as follows:
"Any party aggrieved by a decision of the board to withhold, suspend, or revoke a permit or of the local authorities to withhold a permit may, within ten days of the notification of the decision, take a devolutive appeal to the district court having jurisdiction of the applicant's or permittee's place of business, proposed or actual as the case may be. Such appeals shall be filed in the district courts in the same manner as original suits are instituted therein. The appeals shall be tried de novo. Either party may amend and supplement his pleadings and additional witnesses may be called and heard.
"Within ten calendar days of the signing of the judgment by the district court in any such appeal case, the board or the applicant for a permit or permittee, as the case may be, may devolutively appeal the judgment to the appellate court of proper jurisdiction. These appeals shall be perfected in the manner provided for in civil cases and shall be devolutive only. If the district court determines that the decision of the board or of the local authorities in withholding, suspending, or revoking the permit was in error, the decision of the board or local authorities shall not be voided if the board or local authorities take an appeal to the Court of Appeals in the time provided for suspensive appeals."
There is, therefore, no requirement for the posting of a cost bond as a prerequisite to an appeal under this Section from the action of a local authority to the courts. As pointed out, the instant case represents an appeal from the action of a municipality in withholding from plaintiff a permit or license to sell liquor at retail. However, since the application of plaintiff was for a permit to sell intoxicating liquor of both low and high alcoholic content, it is contended by appellee that the provisions of LSA-R.S. 26:302 must be considered along with § 104 to determine the manner in which an appeal should be taken. The section appellee relies upon provides:
"Any party aggrieved by a decision of the board of tax appeals to withhold, suspend, or revoke a permit or of the collector or local authorities to withhold a permit may, within ten days of the notification of the decision, take a devolutive appeal to the district court having jurisdiction of the applicant's or permittee's place of business, proposed or actual, as the case may be. Such appeals shall be granted by the clerk of court on written petition together with a bond for costs. The appeals shall be tried de novo. Either party may amend and supplement his pleadings and additional witnesses may be called and heard.
"Within ten calendar days of the signing of the judgment by the district court in any such appeal cases, any aggrieved party may devolutively appeal the judgment to the appellate court of proper jurisdiction. These appeals shall be perfected in the manner provided for in civil cases but shall be devolutive in their nature and effect."
The distinction to be made is that in the instant case the appeal was from the action of the municipality and is governed by § 104 of the statute, while the section relied upon concerns appeals from the decisions of the Board of Tax Appeals. That section, in our opinion, has no application in this case.
While we are not here concerned with any plea to the jurisdiction of the court, we are impressed that the conclusions we have reached are supported by the observations of our brethren of the Orleans Court of Appeal in Lanier v. Collector of Revenue, La.App., 98 So.2d 917, 920, wherein the authority to review on appeal the initial decisions are discussed. There it was held:
"* * * when there is no third party opposition and the matter is heard by the Collector or the local authorities, then the appeal goes directly to the court and not to the Board."
Therefore, in the instant case, which represents an appeal from a decision reached by the municipality, no costs having accrued and none being authorized by the statute, the conclusion is inescapable that where the statute says in § 302 that "Such appeals shall be granted by the clerk of court on written petition together with a bond for costs", reference is made only to appeals taken from decisions of the Board of Tax Appeals and not to an appeal taken directly from the decision of a municipality or other local authority. The further conclusion is, as stated hereinabove, that this appeal is governed by § 104 of the statute and there is no condition precedent to the appeal in the nature of a cost bond.
Accordingly, the judgment appealed is annulled, avoided, reversed and set aside, and
It is now ordered, adjudged and decreed that defendant's motion to dismiss plaintiff's appeal to the district court from a decision of the defendant municipality for plaintiff's failure to file and post a cost bond be and the same is hereby overruled, and, accordingly, this cause is remanded to The Honorable The Fourth Judicial District Court in and for Ouachita Parish, Louisiana, for further proceedings consistent with the views herein expressed and in accordance with law.
Reversed and remanded.
On Motion for Rehearing
Defendant-appellee chiefly complains in an application for rehearing of our alleged failure to recognize the existence of separate provisions of the Revised Statutes relating to the sale of beverages with an alcoholic content in excess of 6 percent by volume and of an alcoholic content of 6 percent or less by volume, and, in view of plaintiff's application to sell liquors of both high and low alcoholic content, of our alleged failure to give effect to and construe the provisions as laws in pari materia and to give effect to the provisions of LSA-R.S. 26:302 pertaining to appeals provided in applications relating to the sale of liquors of a low alcoholic content.
The Alcoholic Beverage Control Law, LSA-R.S. 26:1 et seq., relates to the sale of alcoholic beverages containing an alcoholic content of more than six percent by volume. Section 104 thereof pertains to appeals to the courts. LRA-R.S. 26:241 et seq. relates to the sale of alcoholic beverages of an alcoholic content of not more than 6 percent by volume, and Section 302 thereof relates to appeals from decisions of the Board of Tax Appeals to withhold, suspend or revoke a permit, or of the collector or local authorities to withhold a permit for the sale of liquors of a low alcoholic content. The collector is the Collector of Revenue or his duly authorized agents. The latter section provides that any party aggrieved by a decision of the board, collector or local authority may appeal to the district court having jurisdiction of the applicant's or permittee's place of business and recites that "Such appeals shall be granted by the clerk of court on written petition together with a bond for costs." (Emphasis supplied.)
Section 299 of the statute provides that the costs of hearings before the Board of Tax Appeals shall be assessed by the Board against the unsuccessful applicant or permittee. Under Section 300 it is mandatory upon the Collector of Revenue to pay the Board of Tax Appeals all the expenses of the hearings conducted pursuant to the provisions of the statute. While we are of the opinion that the provisions of Sections 104 and 302 each have application to the subject-matter to which they relate, it appears obvious that, as to the application for a license or permit to sell beverages of an alcoholic content exceeding 6 percent by volume, pursuant to the provisions of Section 104, an appeal to the court is not objectionable due to applicant's failure to file with his petition a bond for costs. As originally pointed out, no such bond is made a prerequisite to such appeal by this section of the statute.
The provision contained in Section 302 relating to the filing of a bond for costs, in our opinion, relates solely to costs incurred by or accrued in a hearing by the Board of Tax Appeals. It is conceded no costs were occasioned to the appellee municipality prior to the appeal taken in the instant case to the district court. Moreover (as pointed out originally, the statute makes no provision for the incurring or assessment of costs by a local authority on its refusal to issue a license or permit.
Nor do we find in the statute any language warranting an interpretation that the provision for a bond for costs contemplates future costs to be incurred in the district or appellate courts. A defendant, by availing himself of the provisions of LSA-R.S. 13:4522 and 4523, will be adequately protected in the matter of costs, as is the clerk of court under LSA-R.S. 13:843.
The conclusion, therefore, is that the provision of Section 302 pertaining to a cost bond has no application to an appeal from a decision of a municipality or other local authority denying an application for a permit or license to sell beverages of an alcoholic content of 6 percent or less by volume, and, therefore, the filing of a bond in connection with an appeal to the district court is not a prerequisite to the appeal.
The motion for rehearing is, therefore, denied.