State ex rel. Caillouet v. Marmouget

• Decision Date: 14 December 1903
• Docket Number: 14,978
• Citation: 35 So. 529,111 La. 225
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. CAILLOUET v. MARMOUGET, Recorder, et al

35 So. 529

111 La. 225

STATE ex rel. CAILLOUET v. MARMOUGET, Recorder, et al

No. 14,978

Supreme Court of Louisiana

December 14, 1903

NICHOLLS, C.J. MONROE, J., dissents.

OPINION On Rehearing.

Statement of the Case.

The prayer of relator's application to this court is "that, after inquiry into the validity and legality of the proceedings in the case of the City of New Orleans v Theresa Caillouet, of the docket of the criminal district court, and of City Ordinance No. 2272, C.S., that said ordinance, and particularly its final clause, be declared illegal, null, and void, that the judgment and sentence of the second recorder and of the criminal district court be reversed and set aside, annulled and avoided, and the relatrix be ordered discharged without date, and for general relief."

The grounds assigned for this relief are that the said city ordinance is illegal, null, and void particularly in this that it provides a remedy different from that authorized by law, viz., indefinite imprisonment; that the recorder exceeded his authority and jurisdiction in enforcing or trying to enforce an ordinance the penalty of which is different from that authorized by law, as in this case it amounts to the incarceration of relatrix for six months in the House of Good Shepherd, which penalty said recorder has no right to impose.

Relatrix urges that by section 12 of Act No. 131, p. 201, of 1877, the recorders of the city of New Orleans are restricted in enforcing city ordinances to those only where the penalty is by a fine not exceeding $ 25, and in default of payment by imprisonment not exceeding 30 days, and that is all; that by article 141 of the Constitution of 1898 the recorders of the city of New Orleans are made constitutional officers, and their jurisdiction is limited to the enforcement of legal and valid ordinances; that by Act No. 143, p. 256, of 1898 the jurisdiction and authority of recorders in the city of New Orleans to punish for violation of legal and valid city ordinances is limited to a fine not exceeding $ 25, or imprisonment not exceeding 30 days, or both; that this act has a saving clause reaffirming section 12 of Act No. 131, p. 201, of 1877.

The recorder, for answer to the rule to show cause, declares that the record which he annexed showed that at the time the accused was placed on trial before him she filed no demurrer to the affidavit, and went to trial, and after sentence appealed to the criminal district court; that at no time did accused ask for an appeal to the Supreme Court, which court has jurisdiction involving questions of legality and unconstitutionality of any city ordinance; and, having failed to take advantage of any appeal which she was entitled to to the Supreme Court, she admitted the legality and constitutionality of the ordinance, and appealed on the facts alone to the criminal district court, which affirmed respondent's judgment. At no time did she file any plea or exception to the jurisdiction of the Second Recorder's Court, or ask to be granted an appeal to the Supreme Court, that she might test the legality or constitutionality of the ordinance.

The district judge, for answer to the rule to show cause, urges: "That no constitutional question was raised, and, if there was any constitutional question raised, the proper tribunal before which it should have been raised would have been by appeal to the Supreme Court, and not before the criminal district court on appeal. That, so far as the jurisdiction of the Second Recorder's Court was concerned, the twelfth section of Act No. 131, p. 201, of 1877, declared that the recorders of the city of New Orleans should have full power and authority to enforce all ordinances of the city of New Orleans, and should have power for the violation of the same to impose fines not exceeding $ 25 for each offense, and in default of payment to sentence the party fined to imprisonment for not more than 30 days.

"That the recorder, having found the relatrix to be a vagrant, ordered that she be conveyed to the House of the Good Shepherd. That no time limit is placed upon the commitment, but that it is regulated by the ordinance, which, by its eighth section, provided that the children sent to the House of the Good Shepherd shall be detained therein until they shall attain the age of 18 years; therefore the commitment is that she be kept in the House of the Good Shepherd until she is 18 years. That when a child is arrested as a vagrant, and she is confined in the House of the Good Shepherd, she is not, in law, imprisoned. She has committed no crime. The ordinance is preventive in its effect. It is to save children from their immature judgment from evil and from evil influences, and to detain them in the house of correction until such time as they shall reach the age of 18 years, when, in law, they are supposed to be capable of taking care of themselves. The ordinance therefore is not one which falls within the jurisdictional limit conferred upon the recorders in regard to the punishment of crimes. The recorder, while acting under the ordinances, takes the place of a father or the friend of a family, and decrees what, in his judgment, is best calculated to secure the morals of the child and her safety from evil associates. That, if the ordinance was to be governed by the laws limiting the jurisdiction of the recorders to imprisonment for the violation of any ordinances for a time not exceeding 30 days, the ordinances would be absolutely useless, and might as well be obliterated as a law, for after 30 days the child would fall into evil habits, and would probably become a lost woman."

An examination of the transcript shows that before any testimony was taken the defendant objected to going to trial under City Ordinance 2272, C.S., of May 16, 1877, because said ordinance is unconstitutional, irregular, null, and void, in that it does not fix any maximum penalty, and makes no provision for females to be committed to the House of Good Shepherd under section 7 of said ordinance.

Relatrix did not file any further pleadings in the case, but went to trial on the facts, and appealed at once to the criminal district court from the judgment.

Opinion.

The correctness of the judgment on the facts is not before us on this application, and, if it were, it is not pretended that it was not justified by the same. We have recently held that, where a person sentenced for violation of a municipal ordinance has appealed directly to the district court, where the judgment appealed from is affirmed, he will not be permitted afterwards to test the legality or constitutionality of the ordinance through the exercise of our supervisory, instead of our appellate, jurisdiction. The legality or constitutionality of the city's ordinance is not an issue in this proceeding.

In the brief filed on behalf of relatrix it is said: "The question involved in this case is not the legality or constitutionality of City Ordinance No. 2272, but the legality and validity...