State v. Zurich

On Application for Rehearing. In the brief of the counsel for the city of New Orleans applying for a rehearing it is said: “When this case was submitted to the court counsel for appellee conceded that Ordinance 6533 did not apply to the offence of which defendant was convicted, and that the action of the recorder was a manifest error. The court was asked in view of this admission to reverse the judgment without considering the legality of an ordinance which both parties to the suit declared was not applicable to the state of facts. It is true that were the court to examine this case strictly under its appellate jurisdiction it might be compelled to exclude consideration of the facts. Rut it is urged upon the court that in this case where both parties have agreed upon the facts and where both parties have urged the court to act upon the facts, it is certainly within its equity powers to treat this particular case as if it came under its supervisory jurisdiction.” In the exercise of the powers granted to us under Art. 81 of the Constitution in the class of cases giving an appeal when the legality or constitutionality of a fine imposed by a municipal ordinance is in contestation, we are constantly called on (under the limitations of that article) to grant relief of the same character as that which we would grant in other matters through writs of prohibition — that is to say, on appeal in such cases we pass upon the powers and authority of the municipal body which enacted the ordinance complained of. It is possi le we might be authorized, in exceptional cases, to avail ourselves of our having jurisdiction of the main action to declare (as a concurrent remedy with certiorari'), under Arts. 608 and 609 of the Code of Practice, that the judgment appealed from was a “nullity” when the nullity was apparent on the face of the record. Arts. 608 and 609 of the Code of Practice declare that the nullity of a judgment may be demanded from the court which has rendered the same, or from the court before which the appeal was taken, but that the nullity can only be demanded on the appeal when the nullity is apparent on the face of the record. A practice similar to this (that is to say, throwing inside the powers of an appellate court certain matters ordinarily falling under “supervisory” *456 jurisdiction) seems to prevail in California, though on what particular ground it is based we do not know. (See 26 Pacific, 366, 367 , and cases cited.) Counsel of the city calls our attention to the fact that'the recorder, in rendering the judgment which he- did, exceeded his jurisdiction in inflicting a heavier penalty than the law authorized, and suggests that, upon that ground, we could reverse the judgment without passing upon the legality of the ordinance. Granting that we could do so, our decree to that effect would give a very imperfect remedy, for the utmost we could do would be to send the case back for a proper sentence, leaving the judgment intact. The party seeking relief at our hands has selected an appeal as the method of obtaining it. We can only dispose of cases as we find them. In appeals of the character of the present, we have repeatedly held that the issue before us was restricted to the question of the legality and constitutionality of the ordinance upon which the prosecution was based, and did not extend to a decision upon the correctness of the judgment appealed from. To reverse the judgment we should be able to declare, and should in fact declare, that the ordinance whose violation was sought to be punished was, or was not, constitutional or legal. The admissions made by counsel of the city in this case would lead up to no such conclusion or result; on the contrary, the character of the ordinance itself or its binding force would be left untouched, and the only matter upon which our action would be invoked would be as to whether the judgment of the recorder was correct or not. It is expressly conceded by counsel that the provisions of the ordinance do not extend to the state of facts shown. If that be true, then we are notin a position to express any opinion about the legality or constitutionality of the ordinance itself. The very foundation of the right of the city to insist that the judgment of a recorder’s court, in the matter of the conviction under a municipal ordinance, should remain untouched under an issue as to the legality of the ordinance, would be to insist not that the ordinance did not extend to the facts shown, but, on the contrary, that the ordinance did extend and was intended to extend thereto, and that so extending and so intended to extend the ordinance was still legal. On the other hand, the foundation of the right of the party who had been convicted under the ordinance to have the judgment *457 appealed from reversed would be the counter claim made by him that granting, as a conceded fact, that his acts, such as they were charged or shown, fell under the precise terms of the ordinance, none the less he could not be convicted under it, because if held to so apply the ordinance would be unconstitutional or illegal. Were this ease before us under a contention of that precise character between the parties, we might be justified in determining- and declaring whether the ordinance was legal or constitutional or reasonable or not; but if we were to give effect to the admission of counsel of the city we could not reverse the judgment, as they ask us to do on rehearing. We would have to dismiss the appeal. Appellant necessarily objects to admissions which would affirm the judgment. He contends that granting that he actually did what the city charges him with having done, and granting that his case fell under the precise terms of the ordinance as charged in the complaint against him, he none the less could not be fined or imprisoned, because the directions of the ordinance that he should, through criminal proceedings, be fined for doing the act for which he stood charged and convicted were illegal. The question comes back to us: what was the particular act which under the ordinance was made a “misdemeanor,” and what the particular act for which he was prosecuted, and what the powers of the city in respect to it. An examination of the complaint shows that independently of any question whether the constructions which appellant had put up conformed to the requirements of the regulations of the city in respect to constructions, and independently of any question as to whether he had obeyed the provisions of the ordinance requiring him prior to making the same to have submitted the plans of the same to the Oity Engineer, he was charged as for a criminal offence, because he had, in violation of the terms of the ordinance, put up his constructions before having obtained a permit-from the City Engineer. A simple failure to have done this could not, in our opinion, be by the City Council, under its powers, made a “misdemeanor,” punishable by fine or imprisonment. Unless we could have either said this or could have announced that we upheld “ the legality of the ordinance,” we would have been forced to dismiss the appeal. Rehearing refused. Mr. Justice Miller dissents.