44 La. Ann. 1100 | La. | 1892
The opinion of the court was delivered by
These cases, though not consolidated, were submitted together and, involving identical issues, may be decided together.
-Relators were prosecuted before the respondent Recorder’s Court for violation of City Ordinance No. 6596, O. S., which provides certain regulations touching the sale of milk in this city and certain penalties for the violation thereof.
They appeared and filed a demurrer containing no less than seven distinct grounds. We have examined these very critically and find in them no other matter than the assertion of various grounds on which they claim that the ordinance is illegal and unconstitutional. They present no exception to the jurisdiction of the court eo nomine and no denial of the power of the court to hear and determine the cause, except such as is implied in the denial of the legality and constitutionality of the ordinance.
If the ordinance be legal and constitutional, the jurisdiction and power of the recorder, to hear and determine the cases, pass out of controversy, because Sec. 49 of the Oity Charter, Act 20 of 1882, expressly confers on recorders the power “ to enforce all city ordinances and to try, sentence and punish all persons who violate any valid and legal city ordinance,” and this provision has received constant judicial sanction.
The objections to the legality and constitutionality of the ordinance were a perfectly proper defense; but they were nothing more than a defense, and the power of the recorder to determine it and, after overruling- it, to proceed with the cause, does not admit of question. It is implied in the provision of Art. 81 of the Constitution itself, which extends the appellate jurisdiction'of this court to “ all cases in which the constitutionality or legality of any fine, forfeiture or penalty by a municipal corporation shall be in contestation,” and declares that “in such cases the appeal on the law and
Errors of decision in such cases find their appropriate and sufficient remedy in the right of appeal to this court, which is thus expressly guaranteed.
Relators gravely misapprehend the function of the writ of prohibition, and the rules adopted by this court in the exercise of its supervisory jurisdiction, when they invoke it in such a case.
If the case were unappealable and the writ of certiorari had been joined with that of prohibition, different principles might apply. State ex rel. Walker vs. Judge, 39 An. 134; State ex rel. Debuys vs. Judge, 32 An. 1258.
But to authorize such relief in a case like the instant one would be practically to supplant the remedy by appeal in every case, civil or criminal, in which the defendant chose to plead the unconstitutionality of the law on which the plaintiff’s claim was based.
The case is not altered by the fact that one of the grounds on which the illegality of the city ordinance is charged is that it is ultra vires because conflicting with certain State statutes in pari materia which prescribe penalties for similar acts, of which the State courts have exclusive jurisdiction. Relators are charged exclusively with violating the city ordinance, and, whatever the character of the particular acts charged,if it be judicially determined that the ordinance is illegal and unconstitutional, this prosecution will surely be dismissed. If they were being actually prosecuted in the State court for the same offense, perhaps there might be "some propriety in invoking our supervisory powers to stay the proceedings in one court or the other until decision of the question thus put at issue. But no such double prosecution exists; no conflict of jurisdiction has arisen; and no reason appears why these causes should not proceed, in ordinary course, to a final determination which will settle all questions affecting the alleged conflict.
It is, therefore, ordered and decreed that the provisional writs herein issued be annulled and set aside, and that the applications of relators be denied.
Rehearing refused.
