Extension beyond three hundred foot zone by local authorities is ultra vires
How later courts described this case
- Extension beyond three hundred foot zone by local authorities is ultra vires
Written by the judges who cited it.
The opinion
SANDERS, Justice
(dissenting).
In my opinion, the ordinance of February 2, 1960, prohibiting the sale of intoxicating *1024 liquor “within a distance of 300 feet from .any church * * * ” is a valid enactment.
A presumption of validity attaches to a municipal ordinance and the burden of ■proving to the contrary is on him who attacks it. City of New Orleans v. Beck, 139 La. 595 , 71 So. 883 , L.R.A.1918A, 120; Chapman v. City of Shreveport, 225 La. 859 , 74 So.2d 142 ; Archer v. City of Shreveport, La.App., 85 So.2d 337 . The courts must uphold the ordinance unless it is clearly invalid. City of Shreveport v. Bayse, 166 La. 689 , 117 So. 775 ; Nix v. Village of Castor, La.App., 116 So.2d 99 .
LSA-R.S. 26:280, subd. C provides in ■pertinent part as follows:
“When prohibited by municipal or parish ordinance, no permit shall be granted for any premises situated within three hundred feet or less, as fixed by the ordinance, of a public play.ground or of a building used exclusively as a church or synagogue, public library, or school, except a school for business education conducted as a business college or school. In municipaliities and in unincorporated areas which .are divided into subdivisions with streets, blocks, sidewalks, etc., this distance shall be measured as a person walks using the sidewalk from the nearest point of the property line of the -church or synagogue,, library, playground, or school to the nearest point of the premises to be licensed, * * ” (Italics ours.)
The petitioner in this case is the owner of a cafe operating as a beer outlet for the retail sale or consumption of beer on the premises. See LSA-R.S. 26:241(10), “Beer Outlet.”
The validity of the ordinance turns upon a construction of the phrase, “premises to be licensed,” as employed in the foregoing statute.
In the absence of a restrictive statutory definition, the word “premises” includes both the lot of ground and the building thereon. Davis v. City of Charlotte, 242 N.C. 670 , 89 S.E.2d 406 ; Fortino v. State Liquor Authority, 273 N.Y. 31 , 6 N.E.2d 86 ; 33 Words and Phrases, Verbo, Premises, p. 354. In context, the addition of the words “to be licensed” does not detract from or limit this meaning. The petitioner is licensed for the “sale or consumption [of beer] on the premises.” Assuredly, he has the privilege, whether or not it is exercised, to use both the building and the lot on which it is located for this purpose. Cf. Davis v. City of Charlotte, supra; Fortino v. State Liquor Authority, supra. The test is not whether the lot is “necessarily used in connection with that activity * * * ” but whether the statute and the license issued thereunder accord a privilege to so use it.
In my opinion, this ordinance should be upheld. I respectfully dissent.