This defendant was convicted of selling beer in Ward 3 of Claiborne Parish in violation of Ordinance No. 100 of the Claiborne Parish Police Jury passed January 6, 1943, and sentenced to pay a fine of $400.00 with a suspended jail sentence of four months. During the trial court proceedings two bills of exceptions were reversed, one to the overruling of the motion to quash and the other to the denial of the motion in arrest of judgment. These two bills have been perfected for this appeal, and both present the same legal issue for consideration: Is the parish ordinance which prohibits the manufacture, sale, or consumption of beverages of an alcoholic content greater than one-half of one per cent by volume unconstitutional and invalid, especially when the state law, R.S. 26:588,
Defendant argues that to allow the parish to enforce an ordinance which is contrary to state statute and policy of statewide application, and which regulates more broadly than allowed by state statute (actually prohibits), results in a denial of equal protection and due process of law as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 2, of the Louisiana Constitution.
The conflict between Ordinance No. 100 of Claiborne Parish and the statute is apparent. Generally police regulations of a subdivision of the state cannot exceed the grant of authority from the Legislature and must fall when they conflict with state law. See La.Const. of 1921 Art. XIV, Sec. 40(d). Although this rule would appear to resolve our problem, the complexity of the history and evolvement of the statutory law in this particular field makes the resolution of the problem somewhat more complex.
R.S. 26:588 is but one of a number of provisions in the chapter of the Revised Statutes of 1950, R.S. 26:581-96, setting out the local option law of this state. Under this chapter wards and municipalities are given the right to determine whether alcoholic or intoxicating liquors may be produced, used, or sold within their geographical areas. Approval of a local option law requires a majority vote of the residents of the area at an election called especially for that purpose.
The predecessor of R.S. 26:581-96 was Act No. 372 of 1948. Section 5 of that act contained a provision similar to R.S. 26:588 forbidding prohibition of beverages containing less than 3.2 per cent alcohol. There was, however, a saving clause in Act No. 372, Section 17, which provided: "Nothing in this Act shall be construed or have the effect of vitiating or affecting any ordinance or statute previously adopted or enacted by any political sub-division declaring illegal or forbidding the manufacturing, producing, rectifying, blending, using, storing, distributing and selling of
When the Revised Statutes of 1950 were adopted, Act No. 372 of 1948 was specifically repealed by Section 2 of Act No. 2, and some provisions of that local option law were enacted as part of the Revised Statutes (R.S. 26:581-96). This revision did not include the adoption of the saving clause, Section 17, of Act No. 372. When local option ordinances were attacked as being contrary to the state law, R.S. 26:581-96, in some respects, this court concluded that the local ordinances remained in full force and effect under R.S. 1:16.
In State v. Bradford, supra, this court held that the prohibition ordinance of Sabine Parish, carrying a $500.00 fine which exceeded the maximum penalty of $100.00 fine and/or 30 days provided in the Revised Statutes of 1950, had not been repealed with their adoption.
In State v. Wilson, supra, the court cited Bradford for the proposition that the general saving clause, R.S. 1:16, continued in effect any ordinance adopted pursuant to prior local option laws. The court so held, although the particular saving clause, Section 17 of Act No. 372 of 1948, had been repealed by and was omitted from the Revised Statutes of 1950.
In State v. Dunning, supra, the defendant conceded that the prohibition ordinance adopted by the Beauregard Parish Police Jury was valid insofar as it did not conflict with the Revised Statutes granting local option authority. The defendant argued, however, that that ordinance was subject to limitation by the contrary provisions of the Revised Statutes of 1950, so that the maximum penalty which could be assessed for violation of the local ordinance should conform to and not exceed the penalty provision of R.S. 26:595. Again citing and relying upon State v. Bradford, supra, this court reasoned that the general saving clause of the Revised Statutes permitted these ordinances which contradicted and exceeded the state provisions now in force concerning local option referendums. There were two dissents in Dunning, which appear to be based upon a finding that resultant discriminatory practices constituted a denial of equal protection. However, that constitutional issue had not been raised and was not before the court.
On 112 Grocery v. Cappel, supra, a mandamus proceeding was brought to obtain an alcoholic beverages retail license in a ward of Rapides Parish which was dry under local ordinance passed in 1937 pursuant to local option referendum. The Third Circuit Court of Appeal reasoned that while
Recognizing that under our jurisprudential statutory interpretation local option Ordinance No. 100 of Claiborne Parish is still in effect, we move to the constitutional issues raised by this defendant, which have never been considered by this court before: Does the ordinance deprive this defendant of his constitutional rights of due process and equal protection?
The principle that there is no inherent right in a citizen to deal commercially in intoxicating liquors is well recognized. Rather, it is a privilege subject to control by government under its police power for the protection of the moral, social, and economic welfare of the public. But regulation of this activity by governmental bodies is no more without its limitation than is the exercise of other governmental functions under the police power. Constitutional guarantees must be observed, and there can be no exercise of police power which would require the relinquishment of constitutional rights. State ex rel. Galle v. City of New Orleans, 113 La. 371, 36 So. 999 (1904); Schwegmann Bros. v. Louisiana Board, etc., 216 La. 148, 43 So.2d 248 (1949); City of Baton Rouge v. Rebowe, 226 La. 186, 75 So.2d 239 (1954); Reynolds v. Louisiana Board of Alcoholic Bev. Con., 248 La. 639, 181 So.2d 377 (1966), cert. denied, 385 U.S. 8, 87 S.Ct. 58, 17 L.Ed.2d 7; Reynolds v. Louisiana Board of Alcoholic Bev. Con., 249 La. 127, 185 So.2d 794 (1966), cert. denied Retail Liquor Dealers Ass'n of La., Inc. v. Reynolds, 385 U.S. 946, 87 S.Ct. 318, 17 L. Ed.2d 225.
The method for testing the validity of a purported exercise of the police power has been reiterated by this court in an adoption or paraphrase of the following statement:
"The fixed rule and basic standard by which the validity of all exercise of the police power is tested is that the police power of the state extends only to such measures as are reasonable, and that all police regulations must be reasonable under all circumstances. * * *
"In every case it must appear that the means adopted are reasonably necessary and appropriate for the accomplishment of a legitimate object within the domain of the police power. A statute to be within this power must also be reasonable in its operation upon the persons whom it affects, must not be for the annoyance of a particular class, and must not be unduly oppressive. * * *
"* * * In order to sustain legislative interference by virtue of the police power, either by a statute or a municipal ordinance,
"* * * The legislature has no power, under the guise of police regulations, arbitrarily to invade the personal rights and liberty of the individual citizen, to interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations, or to invade property rights." 11 Am.Jur. Constitutional Law, §§ 302 and 303, now found at 16 Am.Jur.2d Constitutional Law, §§ 269, 277, 279, 280, 285, and 287.
While the state can delegate its police power, its subdivisions can exercise this authority only within the limits of that delegation of power and can never exceed that delegation. Louisiana has delegated to various of its subdivisions some of its police power for the control of alcoholic beverages. R.S. 26:494 permits the subdivisions of the state to "regulate but not prohibit" the commerce of alcoholic beverages except as provided in R.S. 26:581-96 (local option chapter) and by zoning. Moreover, R.S. 26:494 says that no governmental subdivision shall, "in the exercise of its police power, regulate the business of selling such beverages more than is necessary for the protection of the public health, morals, safety, and peace".
In a number of cases this court has dealt with problems which arose from this delegation of power in determining whether the subdivision exceeded its authority. The factual circumstances of these cases cover a broad range of ideas and issues with much contradiction in the reasoning and in the results reached in these various opinions.
With this in mind, we must consider the instant case under today's Constitution and laws and in light of what the Legislature and the people through these legal expressions have declared to be such a contravention of the moral, social, and economic welfare of the public in this field as to permit the exercise of the government's police power.
We have previously noted that the United States Constitution, Amendment 21, permits state prohibition and regulation of liquor traffic; that such regulation and prohibition are permitted when they are within the ambit of protecting the morals, good order, health, and safety of the people; that although the state may delegate this constitutional power, the state authority, vested or delegated, cannot be excessive or unjustified, and that when it is delegated, the authority exercised by a subdivision of the state cannot exceed the state's grant of power.
We said in Schwegmann Bros. v. Louisiana Board, etc., supra, that when the liquor traffic is made lawful, as it always has been in Louisiana except between 1919 and 1933 (i. e., not prohibited by state law), any regulation of it must be pursuant to a legitimate and reasonable exercise of the police power which does not encroach upon constitutional guarantees. Our Legislature, in its enactment of R.S. 26:588 which
In State ex rel. Galle v. City of New Orleans, supra, we said that when the state legalizes the business of selling alcoholic beverages, the distinctions of place and conditions under which individuals may engage in that business must be founded in reason under its police power, for these distinctions may deprive one citizen of the right to earn his livelihood by a lawful calling while they accord that right to another. If legal reason does not maintain the distinctions, such regulations deny equal protection of the law and due process.
The constitutional right of equal protection under the law is violated when unreasonable classification in law grants to some what others are denied or denies to some what others are granted. To be constitutional the classification must be reasonable
In the matter before us the classification of those who cannot sell and buy—traffic in—alcoholic beverages under 3.2 per cent consists of those who—or more likely, those whose ancestors—called a local option election before 1948. The classification of those who must permit the traffic in beverages of this low-alcohol content is of those in a local subdivision where the right of local option was not exercised before 1948. What possible benefit flows to the state, the public, or the individual to have these classifications determine where and whether beverages of less than 3.2 per cent alcohol can be prohibited?
Certainly these classifications have no reasonable basis for promoting the health and welfare of the general public, nor can it be seriously proposed that the persons in these two particular classifications need different protections for the safeguard of their welfare. Whether to prohibit or not to prohibit must be based upon a determination of what the public welfare demands, what the state's police power will permit, what will afford equal protection to all in the same class. Here, the only criterion for that determination was the year a particular local population, not now the same constituency, decided to call a local option referendum. In the face of the state's making this commerce lawful and its public policy statement against prohibition in this particular area (under 3.2 alcoholic beverages), these classifications founded upon that criterion alone serve no reasonable purpose for, and have no relationship to, the protection of the general welfare.
State policy for the exercise of its police power cannot be exceeded or contravened by local ordinances, and the state cannot allow local ordinances to deny equal protection under the law by classifying unreasonably for an unreasonable purpose the citizens of this state. Although legislation, local as well as state, is presumed constitutional, when the courts, which are guardians against legislative infringement upon constitutional rights find such an infringement, they must act. Judicial restraint in anticipation of legislative cure cannot be exercised when there is a clear legislative encroachment upon constitutional guarantees, nor can an unconstitutional statute or ordinance be maintained simply because it is longstanding or even ancient.
We do not hold that all local option elections and local ordinances passed pursuant thereto which were effectuated before 1950 and which are not in accord with the Revised Statutes of 1950 are null and of no effect. We hold only that those local option elections and those ordinances passed thereunder cannot be repugnant to or in contravention of R.S. 26:494 and R. S. 26:588.
Insofar as Claiborne Parish Ordinance No. 100 of 1943 prohibits the business of producing, manufacturing, rectifying, using, distributing, storing, or consuming of beverages of an alcoholic content of less than 3.2 per cent by weight, it is unconstitutional.
McCALEB, J., concurs in the result.
SANDERS, J., dissents.
SUMMERS, J., dissents for the reasons assigned by SANDERS, J.
SANDERS, Justice (dissenting).
Prior to 1948, the Claiborne Parish Police Jury enacted ordinances prohibiting the sale of alcoholic beverages of an alcoholic content greater than one-half percent in designated wards. These ordinances were based upon elections as to the sale of alcoholic beverages, in which the will of the people was determined by popular vote.
In compliance with a uniform line of decisions, the majority correctly holds that these ordinances have not been repealed by subsequent state statutes. See State v. Bradford, 220 La. 176, 56 So.2d 145 (1951); State v. Wilson, 221 La. 990, 60 So.2d 897 (1952); State v. Dunning, 224 La. 204, 69 So.2d 16 (1953); 112 Grocery v. Cappel, 228 So.2d 157 (La.App. 3rd Cir. 1969), writs refused, 255 La. 246, 230 So.2d 94 (1970).
The majority then holds that these ordinances are unconstitutional, because they deprive the defendants of due process and equal protection. Although the opinion is not altogether clear, the holding seems to be based upon the notion that, because of a change in the attitudes of the people, the ordinances prohibiting the sale of beverages of low-alcoholic content have become an unreasonable restriction in the various parishes where they have been adopted.
A statute or ordinance is presumed to be constitutional. The burden of establishing unconstitutionality rests upon the party who attacks it. Thus, one who complains of the classification or territorial scope of a statute must establish that the classification or scope has no rational basis. To invalidate the statute, the record must show that no fair reason supports the legislative judgment. State v. Rones, 223 La. 839, 67 So.2d 99; State v. Guidry, 247 La. 631, 173 So.2d 192; Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369; 16 Am.Jur.2d, Constitutional Law § 172, p. 390, § 174, pp. 394-399.
In the present case, the record contains no evidence at all concerning the relevant conditions and needs of the parish and wards where these ordinances apply. See McGowan v. State of Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393. Without proof, this Court cannot assume the absence of differences. Fort Smith L. & T. Co. v. Board of Imp. of Paving Dist., 274 U.S. 387, 47 S.Ct. 595, 71 L.Ed. 1112.
The rich diversities in the people and culture of Louisiana are matters of common knowledge. Many of these are deeply rooted in history. The expression of these differences in local ordinances does not render the ordinances unreasonable or discriminatory.
If these ordinances are obsolete, correction lies in legislation, not in judicial fiat overriding both the legislative body and the will of the people as expressed in a free election. In my opinion, the present decision invades the province of the legislative branch of government.
For the reasons assigned, I respectfully dissent.
This is an appeal from a conviction for violating Ordinance No. 100 of Claiborne Parish prohibiting, inter alia, the selling of beer of an alcoholic content greater than one-half of one percent by volume within Ward Three. The validity of the ordinance was assailed by a motion to quash and a motion in arrest of judgment, both of which were denied. Bills of exceptions were reserved.
The question is whether the ordinance denies the accused equal protection of the laws contrary to the guarantees of Article I, Section 2, of the Louisiana Constitution and the Fifth and Fourteenth Amendments to the United States Constitution.
When the Eighteenth Amendment to the United States Constitution was adopted prohibiting the use of intoxicating liquors throughout the Nation, all State laws on the subject were, for all practical purposes, nullified, the Federal Constitution having pre-empted the field. In 1933 the Twenty-First Amendment repealed the Eighteenth Amendment and reinvested authority in the States to regulate intoxicating liquors. Whereupon, Louisiana enacted laws regulating alcoholic beverages. Act 17 of 1935
Pursuant to this legislative authority, an election was held in Claiborne Parish. The election carried the proposition that beverages containing more than one-half of one percent alcohol should be outlawed. Therefore, on January 6, 1943, Ordinance No. 100, a "dry law", was adopted declaring, in pertinent part, it to be unlawful for any person to sell beer of an alcoholic content containing more than one-half of one percentum by volume.
Subsequently, Act 372 of 1948 was enacted providing that local ordinances could not thereafter prohibit the sale of beverages containing more than one-half of one percent alcohol by volume, but not more than 3.2 percent alcohol by weight. This Act, however, contained a savings clause which read:
The substance of the 1948 Act, without the quoted savings clause, was thereafter incorporated into the Revised Statutes of 1950 as Sections 581 through 596 of Title 26. Section 588 provides:
In a number of cases in this Court and in our courts of appeal it has been held that the enactment of Sections 581 through 596 into the Revised Statutes, without incorporating the savings clause of Act 372 of 1948, did not have the effect of vitiating dry ordinances adopted under the authority of the 1935 Act. State v. Dunning, 224 La. 204, 69 So.2d 16 (1953); State v. Wilson, 221 La. 990, 60 So.2d 897 (1952); State v. Bradford, 220 La. 176, 56 So.2d 145 (1951); 112 Grocery v. Cappel, 228 So.2d 157 (La. App.1969) cert. denied, 255 La. 246, 230 So.2d 94 Melton v. Winn Parish Police Jury, 228 So.2d 58 (La.App.1969) cert. denied, 255 La. 153, 229 So.2d 734. These holdings are supported by Section 16 of Title 1 of the Revised Statutes. That section enacts a rule of construction declaring that the Revised Statutes "shall be construed as continuations of and as substitutes for the laws or parts of laws which are revised or consolidated herein." The section mandates that the adoption of the Revised Statutes shall not affect, among other, any rights acquired prior to the effective date.
Notwithstanding that since the 1948 Act and its inclusion in Section 588 the cases have upheld the validity of local option ordinances previously enacted under authority of the 1935 Act, it is contended that the constitutionality of those ordinances has never been tested against the claim that they violate the Equal Protection Clause of the State and Federal Constitutions. The equal protection argument is founded upon the rationale that it is an unequal application of laws to permit some parishes, wards or municipalities to adhere to local option dry laws when the State's policy enunciated in Section 588 is that beverages containing less than 3.2 percent alcohol cannot be outlawed. For one thing, it is said, those living within the geographical area affected by the ordinances may not engage in the business of
For this contention to be sustained two propositions must be established: First, a finding must be made that the State's policy is expressed in Section 588 and, therefore, it is a contravention of State policy for ordinances to outlaw beverages of less than 3.2 percent alcohol. And, secondly, it must be shown that the dry laws result in an unreasonable classification which works a denial of equal protection of the laws.
First, it may be true that the State's policy is expressed in Section 588 to the effect that beverages of less than 3.2 percent alcohol may not be outlawed. But this is only part of the State's policy. At the same time Act 372 of 1948 (the predecessor of Section 588) was enacted declaring that beverages of less than 3.2 percent alcohol could not be prohibited, it was emphatically stated in the savings clause of that same act that it did not have the effect of vitiating or affecting any ordinance or statute previously adopted declaring illegal the selling of beverages of more than one-half of one percent. That is to say, the savings clause created an exception to the general policy expressed in the Act of 1948, and this exception was as much a part of the State's public policy as any other part of the act. And when the 1948 Act was continued in the Revised Statutes as Section 588, the exception remained valid under repeated decisions of this Court. The exception remains valid today as a viable expression of the State's public policy, standing with equal dignity alongside the State's policy of not permitting dry laws after 1948.
As to the contention that permitting isolated areas to maintain dry laws results in a denial of equal protection, the answer is that laws are not rendered violative of equal protection guarantees because they operate only in certain geographical areas. We answered this question in State v. Guidry, 247 La. 631, 173 So.2d 192 (1965), by saying:
There is a rational basis for the exception to Section 588. It is found in the legislative recognition of the differing desires and needs of the people. These desires and needs were encouraged and authorized by the enactment of the local option statute of 1935. The desires and needs were manifested by those areas where local option ordinances were voted upon by the people. In areas where local option was not exercised, the need was not manifest. The authority for future local ordinances prohibiting beverages containing less than 3.2 percent alcohol was withdrawn by the 1948 Act and its successor, Section 588. The local option ordinances previously adopted have been excepted from the Section 588 restraint. The exception is further recognition of the local needs and desires of a geographical area which the public policy of the State sanctions.
There is no constitutional requirement that the rich diversity of customs and mores of our people must be abolished. And it does not offend constitutional equal protection rights to permit ordinances which preserve those customs and mores. Without evidence that these ordinances are based upon an unreasonable classification, there is no basis for invalidating them. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Fort Smith Light & Traction Co. v. Paving Dist., 274 U.S. 387, 47 S.Ct. 595, 71 L.Ed. 1112 (1927).
It would be inconsistent with sound principles of law to declare these ordinances
For the reasons assigned, the judgment and decree heretofore rendered is reversed and set aside, and the judgment of the trial court reinstated. The conviction and sentence are affirmed.
DIXON, J., dissents.
TATE, Justice (dissenting).
I do not reach the constitutional issue, for I believe that legislation of our state presently in effect invalidates the local prohibition ordinance under which this conviction was had.
In 1943, Ward 3 of Claiborne Parish voted dry by popular referendum. Pursuant thereto, Ordinance # 100 was adopted by the parish police jury. This prohibited the sale of beer of an alcoholic content greater than one-half of one percent by volume.
This 1943 ordinance was adopted as authorized by a 1935 state law. This 1935 act was repealed by Act 372 of 1948, which is codified as La.R.S. 26:581-595. Section 5 of the 1948 act, codified as 26:588 (1950), provides:
"Prohibition of the sale of any or all alcoholic beverages by a local option election held pursuant to this Chapter shall not operate as a prohibition of the manufacturing, producing, using, distributing, storing, or selling of beverages containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight." (Italics mine.)
Thus, the Claiborne ordinance prohibiting the sale of beer of an alcoholic content greater than ½% is contrary to (and invalid to that extent) the present state enactment, which provides that local ordinances "shall not operate as a prohibition of . . . selling of beverages containing. . . not more than three and two-tenths percent [3.2%] weight".
The 1948 act did contain a savings clause expressly providing that the 1948 statute did not invalidate local ordinances prohibiting the sale of beverages between .5% and 3.2% alcoholic content. However, Section 17 was repealed when the 1948 statute was codified into the 1950 Revised Statutes. (Act 372 of 1948 was expressly repealed by Section 2 of Act 2 of the Extraordinary Session of 1950, which enacted the Revised Statutes.)
Under interpretative principles generally held applicable, where the text of a former law was changed when it was incorporated into the Revised Statutes, and the present revised provision is clear and unambiguous, the unambiguous text of the Revised Statutes should be interpreted according to its clear meaning, without reference to the prior law—that is, the provision is held to be changed rather than to have merely clarified or codified former law. Bel v. Van Kuren, 236 La. 23, 106 So.2d 703 (1958); City of Alexandria v. LaCombe, 220 La. 618, 57 So.2d 206 (1952); Note, 15 Louisiana Law Review 472 (1955). See also La.R.S. 1:4 (1950).
This reasoning is to some extent inconsistent with that of this court in State v. Dunning, 224 La. 204, 69 So.2d 16 (1953), State v. Wilson, 221 La. 990, 60 So.2d 897 (1952), and State v. Bradford, 220 La. 176, 56 So.2d 145 (1951), where the present precise question was not at issue. To that extent, these decisions should be overruled, insofar as not distinguishable.
Further, we have held that the effect of the local prohibition may not be removed except by a vote of the public of the particular land territory formerly effected, even though a portion of this dry territory is subsequently included in a different territorial subdivision which has not adopted a prohibition ordinance. Blanchard v. Gauthier, 248 La. 1107, 184 So.2d 531 (1966).
For there reasons, I respectfully dissent.
BARHAM, Justice (dissenting).
I dissent and assign as my reasons the constitutional ground set forth in the opinion on original hearing. However, I also agree with Mr. Justice Tate's dissent on rehearing that we could pretermit the constitutional issue, and if we did, we would be required to declare these pre-1948 local option ordinance invalid because, as he correctly and cogently states, the former jurisprudence incorrectly held them valid under an erroneous statutory interpretation that a general saving clause in the Revised Statutes of 1950 retained them in effect. I purposely did not pretermit the constitutional issue on original hearing, correctly surmising when I penned the original opinion, that the majority of this court would not overrule the former jurisprudence. Therefore I went directly to the valid and basic ground urged by defendant which had not been previously encumbered with jurisprudential interpretation. While I am firmly convinced of the soundness of the original opinion on the finding of a denial of the constitutional right of equal protection and prefer to stand on that ground, I would lend further support to the result which should obtain by adding these comments to Mr. Justice Tate's dissenting opinion in regard to the earlier erroneous statutory interpretation in this area.
In my concurring opinion in Carter v. Moore, 258 La. 921, 248 So.2d 813 (1971), I stated that the jurisprudence upon the issue there involved was "built upon a tenuous and untenable foundation and is inversely pyramided". That expresses my opinion of the jurisprudence of State v. Bradford, 220 La. 176, 56 So.2d 145 (1951); State v. Wilson, 221 La. 990, 60 So.2d 897 (1952); State v. Dunning, 224 La. 204, 69 So.2d 16 (1953). A perusal of the Bradford record in this case shows that the conviction there was prior to the effective date of the Revised Statutes of 1950. I fail to understand why the court there interpreted the 1950 Revised Statutes and applied them to a conviction before that legislation became effective. The cases which follow Bradford cite and rely upon its erroneous rationale to hold that when the 1950 Revised Statutes were adopted,
For the reasons assigned on original hearing, those here assigned, and those assigned in Mr. Justice Tate's dissent, I respectfully dissent.