State v. Marshall
| Decision Date | 01 January 1895 |
| Docket Number | 11,726 |
| Citation | 17 So. 202,47 La.Ann. 646 |
| Court | Louisiana Supreme Court |
| Parties | STATE OF LOUISIANA v. CHARLES MARSHALL |
APPEAL from the Sixth Recorder's Court of the City of New Orleans. Cain, J.
E. A O'Sullivan, City Attorney, for Plaintiff, Appellee.
Denegre & Denegre, for Defendant, Appellant.
This appeal was taken from a judgment rendered by the Sixth Recorder's Court, imposing a fine of twenty-five dollars or thirty days' imprisonment upon the defendant Marshall.
The ordinance under which, we infer, the recorder acted, is numbered 9820, Council Series, and sets forth that for the better protection of life and property the Louisville & Nashville Railroad Company are ordered to erect gates at certain designated intersections of streets, within thirty days after the passage of the ordinance, under the penalty for non-compliance corresponding with the fine imposed.
The affidavit was made against Charles Marshall, superintendent of the Louisville & Nashville Railroad Company, charging him with the unlawful and malicious violation of the ordinance.
The defendant pleaded that his arrest was illegal and unconstitutional, there being no law authorizing the arrest and the fine.
The judgment was not rendered against the railroad company, but solely against Charles Marshall.
The contention of the defendant is: The ordinance does not provide that the general superintendent of the Louisville & Nashville Railroad Company shall be liable for the failure of the railroad company to comply with the terms of the ordinance, and that the defendant is not punishable for the failure of a railroad company to comply with the terms of the ordinance.
In short, that an attempt is made to impose a fine upon a defendant against whom the ordinance does not apply.
A similar question was considered and decided in State vs. Courcier, 46 An. 910, and this court held: that the complaint of the defendant was not that the ordinance is illegal and unconstitutional, but that the recorder has made the ordinance apply to a case outside of the terms thereof and not covered by it. In other words, that under the charge as made and under the evidence as received the judge has sentenced him, not under an illegal ordinance of the city at all.
The remedy, the court said, was not by appeal.
Here the issue is the same on this point as it was in the case from which we have just quoted.
The defendant...
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