State v. Hagen

• Decision Date: 23 February 1915
• Docket Number: 20860
• Citation: 67 So. 935,136 La. 868
• Court: Louisiana Supreme Court
• Parties: STATE v. HAGEN

67 So. 935

136 La. 868

STATE v. HAGEN

No. 20860

Supreme Court of Louisiana

February 23, 1915

Rehearing Denied March 22, 1915

SYLLABUS

(Syllabus by the Court.)

The provision of the Constitution which extends the appellate jurisdiction of this court to 'all cases in which the constitutionality or legality * * * of any fine, forfeiture or penalty, imposed by a municipal corporation, shall be in contestation, whatever may be the amount,' applies to cases arising under parish, or police jury, ordinances, as well as to those arising under the ordinances of cities towns, and villages.

Scheen & Blanchard and E. P. Mills, all of Shreveport, for appellant.

R. G. Pleasant, Atty. Gen., and W. A. Mabry, Dist. Atty., of Shreveport (G. A. Gondran, of New Orleans, of counsel), for the State.

On Motion to Dismiss Appeal.

PROVOSTY, LAND, and O'NIELL, JJ., concur in the decree, on the ground that the police jury was without authority to pass the ordinance in question. O'NIELL, J., however, is of the opinion that this court has no jurisdiction of the appeal, and will hand down reasons.

OPINION

MONROE, C. J.

Defendant was prosecuted under an ordinance of the police jury of the parish of Caddo, entitled 'An ordinance for the suppression of the blind tiger and the enforcement of the prohibition law of the parish of Caddo.' After excepting to the jurisdiction of the district court, he moved to quash the bill of information, on the ground that the ordinance is illegal and unconstitutional, for various reasons, which are fully set forth, and, his motion having been overruled, he took his bill of exception, after which he was convicted and sentenced, and he took his appeal. The state moves to dismiss the appeal, on the grounds that the offense with which the defendant is charged is not punishable by death or imprisonment at hard labor, and no fine exceeding $ 300 or imprisonment exceeding six months has actually been imposed upon him, that the ordinance under which he was convicted and sentenced has not been declared unconstitutional, and that all other matters brought up by the appeal involve questions of fact, and hence that this court is without jurisdiction of the appeal.

It will be observed, however, that defendant, by his motion to quash, has put in contestation the constitutionality and legality of the ordinance under which he has been convicted, and article 85 of the Constitution declares that the appellate jurisdiction of this court shall extend --

'to all cases in which the constitutionality or legality of any tax, toll or impost whatever, or of any fine, forfeiture, or penalty imposed by a municipal corporation, shall be in contestation, whatever may be the amount thereof, and to all cases wherein an ordinance of a municipal corporation or a law of this state has been declared unconstitutional, and in such cases the appeal, on the law and the facts, shall be directly from the court in which the case originated to the Supreme Court, and to criminal cases on questions of law alone.'

And then follows a specification of the particular class of criminal cases, to which alone the jurisdiction is extended, and which does not include the case here presented.

It is clear, from the foregoing, that if the fine and penalty, the constitutionality and legality of which defendant has put in contestation, have been imposed by a municipal corporation, this court is vested with jurisdiction of the appeal; but the contention of the prosecution is that a parish is not a municipal corporation, within the meaning of the language above italicized, which language, it is said, must be confined in its application to cities, towns, and villages.

Chancellor Kent defined a 'municipal corporation' to be:

'A public corporation, created by government for political purposes, and having subordinate and local powers of legislation; e. g., a county, town, city,' etc. 2 Kent, Com. 275.

In Bouvier's Law Dictionary (Ed. 1865) we find:

'Municipal. Strictly, this word applies only to what belongs to a city. Among the Romans, cities were called municipia; those cities voluntarily joined the Roman republic, in relation to their sovereignty only, retaining their laws, their liberties, and their magistrates, who were thence called municipal magistrates. With us, this word has a more extensive meaning; for example, we call municipal laws, not the law of a city only, but the law of the state. 1 Bl. Com. 'Municipal' is used in contradistinction to 'international'; thus, we say an offense against the law of nations is an international offense, but one committed against a particular state or separate community is a municipal offense.'

In the same work (Ed. 1897) we find:

'Municipal Corporation. A public corporation, created by government for political purposes, and having subordinate and local powers of legislation; e. g., a county, town, city, etc. 2 Kent. 275; Ang. & A. Corp. 9, 29; Bald. 222, An incorporation of persons, inhabitants of a particular place, or connected with a particular district, enabling them to conduct its local civil government. Glover, Mun. Corp. 1. * * * There are territorial subdivisions, not incorporated, but which are, like municipal corporations, instrumentalities of local government for certain definite purposes. Such are, in some states, the counties, or towns, or school districts, where they are not incorporated. They are termed quasi corporations, which title see. They are not included in the phrase 'counties or municipal corporations' in a statute. [Eaton v. Supervisors of Manitowoc County] 44 Wis. 489.'

Then follows a dissertation upon the powers of public corporations, possessing charters, which are differentiated from quasi corporations, which have no charters.

Turning to another title in the same work, we find:

'Quasi Corporations. A term applied to those bodies, or municipal societies, which, though not vested with the general powers of corporations, are yet recognized, by statutes or immemorial usage, as persons, or aggregate corporations, with precise duties, which may be enforced, and privileges, which may be maintained, by suits at law. They may be considered quasi corporations, with limited powers, coextensive with the duties imposed upon them by statute or usage, but restrained from a general use of the authority which belongs to those metaphysical persons, by the common law.'

'Among quasi corporations may be ranked counties, and also towns, townships, parishes, hundreds, and other political subdivisions which are established without an express charter of incorporation, commissioners of a county, most of the commissions instituted for public use, supervisors of highways, overseers or guardians of the poor, loan officers of a county, trustees of a school fund, trustees of the poor, school districts, trustees of schools, judges of a court authorized to take bonds to themselves in their official capacity, and the like, who are invested with corporate powers, sub modo, and for a few specified purposes only. The Governor of a state has been held a quasi corporation sole. [Governor v. Allen] 8 Humph. 176. So has a trustee of a friendly society, in whom, by statute, property in vested, and by and against whom suits may be brought. See 1 B. & Ald. 157. So of a levee district, organized by statute to reclaim land from overflow. [Dean v. Davis] 51 Cal. 406. And fire departments, having by statute certain powers and duties which necessarily invest them with limited capacity to sue and be sued. [Clarissey v. Metropolitan Fire Dept.] 31 N.Y.S. 224. It may be laid down as a general rule that where a body is created by statute, possessing powers and duties which involve, incidentally, a qualified capacity to sue and be sued, such body is to be considered a quasi corporation,' etc.

In Black's Law Dictionary, the primary definition which the author gives of 'municipal corporations' is in the language of Chancellor Kent (adopted by Bouvier, supra).

In Commissioners of Laramie Co. v. Commissioners of Albany Co., 92 U.S. 307, 23 L.Ed. 552, it appeared that Albany and Carbon counties were created out of Laramie county, but that no provision was made with regard to the payment of the then debt of Laramie county, and the suit was brought to recover from the new counties their just proportion of that debt. The opinion of the court begins, and reads in part, as follows, to wit:

'Counties, cities, and towns are municipal corporations, created by the authority of the Legislature; and they derive all their powers from the source of their creation, except where the Constitution of the state otherwise provides. Beyond doubt, they are, in general, made bodies politic and corporate, and are usually invested with certain subordinate legislative powers, to facilitate the due administration of their own internal affairs, and to promote the general welfare of the municipality. * * * Trusts of great moment, it must be admitted, are confided to such municipalities. * * * Corporations of the kind are properly denominated public corporations, for the reason that they are but parts of the machinery employed in carrying on the affairs of the state. * * * Such corporations are composed of all the inhabitants of the territory included in the political organization; and the attribute of individuality is conferred on the entire mass of such residents. * * * Institutions of the kind, whether called counties or towns, are auxiliaries of the state in the important business of municipal rule. * * * 'Civil and geographical division of the state into counties, townships, and cities,' said Thompson, C. J., 'had its origin in the convenience and necessities of the people; but this does not withdraw these municipal divisions from the supervision...