State v. Dean

45 La. Ann. 441

• Court: Supreme Court of Louisiana
• Decided: March 15, 1893
• Docket: No. 11,099
• Status: Published

Opinion

The opinion of the court was delivered by

Watkins, J.

The defendant is appellant from a judgment and sentence of $25 fine, and in default of payment, thirty day’s imprisonment in the parish prison, for using vulgar- and obscene language on the streets in violation of city ordinance, No. 3121, A. S., as amended by ordinance No. 4925, C. S.

His complaint is that the judge of the recorder’s court being recused, Recorder Adams was called to preside at the trial in his place, over his objection and exception; and that said recorder, instead of taking up the case for trial in open court, retired to his private office, where he proceeded to hear and decide the cause.

It is apparent that we can entertain no jurisdiction in such a case, as our authority in this class of cases only extends to those controversies in which the constitutionality or legality * * “of any fine, forfeiture, or penalty imposed by'a municipal corporation shall be in contestation.” It is quite true that it also provides that “in such eases the appeal on the law and the fact shall be directly from the court in which the case originated to the Supreme Oourt. Const., Art. 81.

But the case must involve a question of the uneonstitutionality or the illegality of the city ordinance, under which the defendant and appellant is being prosecuted, and hence the constitutionality or legality of the fine, or penalty which is imposed, is drawn in question; otherwise the appeal is not examinable, on either law or fact. If, however, the appeal presents such a question of constitutionality or legality of ordinance and penalty, the fact as well as the law are open to examination. This appeal is wanting in the most essential. element to give this court jurisdiction.

Judgment affirmed.