State ex rel. Lamarque v. Burthe

The opinion of the Court was deliveied by Bermudez, C. J. The Relator applies for a mandamus to' compel the recorder to grant him a suspensive appeal from a judgment inflicting a fine on him for the violation of a municipal ordinance,charged with illegality as having been previously repealed. The recorder, in an elaborate return, denies that the constitutionality or legality of the ordinance was, in any manner, put at issue before him. The relator has adduced no proof to show the reverse. This Court surely could, in the exercise of its appellate jurisdiction, review a judgment, for any amount, rendered in furtherance of a municipal ordinance assailed as unconstitutional or illegal, where such judgment has passed on such issue; but in the absence of such plea, it would be powerless to adjudicate upon the correctness of such judgment The Constitution vests it with appellate jurisdiction m cases in which the constitutionality or legality of any fine imposed by a municipal corporation is in contestation. Art. 81. “ The Supreme Court can only exercise its jurisdiction in so far as it shall have knowledge of the matters argued or contested below.’ C. P. 895. As the legality of the fine was not contested below, it could not be contested on appeal. The recorder has, therefore, properly refused the appeal. It is, therefore, ordered that the application for a mandamus be refused, with costs.