State ex rel. Geale vs. Recorder of the First Recorder's Court. hard labor, nor a fine exceeding three hundred dollars. There remains for inquiry whether the case falls within the definition of a fine, or penalty imposed by a municipal corporation. Two acts were passed by the General Assembly on the same day relative to the sale of lottery tickets. The first enacts that any person who shall within the city of New Orleans sell a lottery ticket without license of the company now authorized by law, shall be liable to pay a fine of twenty-five dollars to the City, one half of which shall be for the benefit of the informer, and imposes upon any police officer the duty of arresting such person, and of taking him before the police court of the district, wherein the violation may have occurred, which court shall condemn the offender to pay the fine, or in default of payment, to impris onment for five days. Acts 1874, p. 47. The second makes the same act of any person, done any where in the State, a misdemeanor, punishable by imprisonment of not less than ten days nor more than a month, and a fine of not less than fifty nor more than two hundred dollars, one half of which is for the informer and the other for the parish wherein the offense was committed. Idem, p. 48. The thought in the mind of the legislator evidently was that the act denounced and punished by the first law was not an offence against the State, for if it had been, its operation would have been made to extend through the whole State, and the second act would have been superfluous. The relator in his petition denominates it a State offense. But if he has correctly denominated it, then it is not an act for which a fine or penalty has been or can be imposed by a municipal corporation, and our jurisdiction would fail on that ground. Fines, forfeitures, and penalties are imposed by municipal corporations for violations of their ordinances. But the power of the State to impose fines and penalties for the same act that is punishable by a municipal ordinance is well estab lished. The fact that the State has conferred upon a corporation the power to pass ordinances and impose penalties for the regulation of any specified subject does not necessarily supersede the State law on this same subject, but the State law and the City ordinance may both stand, if not inconsistent. Thus in New York, the legislature imposed a penalty of one dollar for servile labor on Sunday, and the corporation of the City of New York imposed a penalty of five dollars for the same offence. Both were held good. Cooley says, the same act may constitute an offence against both the State and the municipal corporation, and may be punished under both without violation of any constitutional principle. Const. Lim. 199. So also Dillon;-The State may, and as to local matters often does except municipal corporations from the operation of its laws, and either provides a special law for them, or authorizes them to make spe State ex rel. Geale vs. Recorder of the First Recorder's Court. cial regulations for themselves. * Hence the same act is sometimes forbidden by general statute, and by the ordinance of a municipal corporation, each providing a separate and different punishment. Munic. Corp. 301. The fine impending over the relator is not imposed by an ordinance of the City, and hence we have not here the case of an act twice forbidden by distinct and several authorities, viz the State law and the municipal ordinance. But in principle it is the same. A corporation has no power to pass any ordinances whatever except in so far as that power is actually delegated to it by the State, or is imparted to it by implication, as flowing necessarily from the grant of a general power to regulate its administration. The State need not grant a corporation the power to make any ordinance whatever, but may reserve to itself the entire and exclusive control of the administration of each city or town within its limits, but convenience and necessity have always prompted the delegation of those powers to the corporation. As the corporation derives the power to pass ordinances from the State, it follows that the State can enact a law for the corporation, and accordingly the State in 1874 did pass on the same day the two laws already mentioned. The fine or penalty provided by these acts is in neither case imposed by a municipal corporation. The first makes a police regulation for the government of a particular city, and confides its enforcement to the police magistrates of the city. The second makes the same act an offence against the State, punishable by the State courts, and it is only when the fine or penalty is imposed by a municipal corporation that we have jurisdiction. New Orleans v. Blanc, 1 Annual, 385. Travers' case, 3 Annual 693. And this brings us to the consideration of the last objection of the relator, i. e. that the legislature could not constitutionally confer judicial power upon the Recorder. The judicial power of this State is vested in a Supreme court, in district courts, in parish courts, and in justices of the peace, (Const. art. 73) and no judicial power, except as committing magistrates in criminal cases, shall be conferred on any officers other than those mentioned above, except such as may be necessary in towns and cities, and the judicial powers of such officers shall not extend farther than the cognisance of cases arising under the police regulations of towns and cities in the State. art. 94. We are met on the threshold here by the well settled jurisprudence of this State, that no appeal will lie to this Court from a judgment for less than the sum mentioned in the constitution, rendered by a mayor or police magistrate of a town for an alleged infraction of an ordinance of the corporation, where the only question raised is the constitutionality of an act of the legislature vesting judicial power in the officer State ex rel. Geale vs. Recorder of the First Recorder's Court. who rendered the judgment. Donaldsonville v. Richard, 4 Annual 83. Municipality v. Corning, idem 407. Albert v. Brewer, 9 Annual 64 State v. Rebassa, idem 305. Penn v. Municipality, 4 Annual 13. The case of Lafon v. Dufrocq, 9 Annual 350 is cited as authority for the want of power of the legislature to confer judicial power upon the police magistrate of a town, but that decision was based on the constitutions of 1845 and 1852, which did not contain any provision similar to art. 94 of the present Constitution, which, as we have seen, makes special mention of the ‘judicial powers' that are permitted to be conferred upon such officers as may be 'necessary in towns and cities.' We there fore hold that the exercise of judicial power by the recorders of New Orleans, when not extended further than the cognisance of cases arising under the regulations for the police of the city, is not unconstitutional. Even without this delegation of a partial and limited judicial power to a police magistrate, it has been elsewhere held that the power could be exercised because it was not in the strict sense judicial. Thus where the power of the mayor of Hagerstown to try and fine under an ordinance imposing a fine for an offense was disputed, and the same offense was punishable by the State as a misdemeanor, and the constitution of Maryland was like our own in respect to the courts wherein judicial power was vested, it was said; the argument that the mayor could not try and fine under the ordinance, because the exercise of such power is judicial, which by the Constitution is confided to certain classes of persons, would be entitled to great weight, if we thought the power exercised by the defendant was, in the sense of the Constitution, a part of the judicial power. But we entertain no such opinion. We regard it as but a part of the police power, as contradistinguished from the regular judiciary powers of the State. From time immemorial, a distinction has been observed between the two, both in England and this country. * We regard the power, conferred on the corporation of Hagerstown, to summarily punish persons of the description of appellant, as falling directly within the definition of a police regulation. She was punished for an offense against the decency and morals of the town, and not against those of the State. This did not wipe out all responsi bility for the offense to the dignity and sovereignty of the State. Shafer v. Mumma, 17 Md. 331. See also Floyd v. Eatonton, 14 Ga. 354 on this point, and also on that of non-trial by a jury. * * We have therefore arrived at the conclusion that we can not grant the relator the relief by a writ of certiorari to bring up the proceedings of the Recorder, to the end that inquiry of their validity be made, because of our want of constitutional power to exercise the jurisdiction. We readily concede, and have endeavored to demonstrate, that the Code of Practice intends that the writ shall issue in an unappealable case, State ex rel. Geale vs. Recorder of the First Recorder's Court. wherein the judgment is of the court of the last resort, but that Code is not the source of this court's jurisdiction, and its provisions relative to the issuing of that writ under the circumstances of this case are inapplicable to this court, because the Constitution has in express terms limited its original jurisdiction to the issuance of the habeas corpus, and in all other causes has conferred appellate jurisdiction alone. Shalor's case, 9 Annual, 522. Taenzer's case, 15 Annual, 120. We are urged to interpose to prevent the infliction of a grave and flagrant public injury. But it would be a graver injury if this court should overstep the bounds set up by the organic law, within which it must move, for the purpose of correcting any evil, however flagrant. It is adjudged and decreed that the writ of certiorari is refused, and the restraining order, heretofore issued to the Recorder, is cancelled and annulled at the costs of the relator. No. 6977. STATE OF LOUISIANA VS. RICHARD SMITH, ALIAS DICK SMITH. In putting questions to witnesses in a criminal trial it is not permitted to assume as true, facts which have not been proved, and which the jury alone are charged with finding. One witness can not testify in a criminal trial as to what another witness said on The mere fact that an accused when under examination before a magistrate does A PPEAL from the Sixth Judicial District Court, parish of Tangipahoa. H. N. Ogden, Attorney General, and J. H. Muse for the State. The opinion of the court was delivered by SPENCER, J. The defendant was indicted, tried, and convicted on a charge of murdering one Eliza Whittington; was found guilty and sentenced to death. He appeals, and presents for our consideration various grounds for reversal of the sentence. The first and second bills of exception present substantially the same questions, and may be considered together. 30 457 111 210 State vs. Smith. The district attorney asked a State witness the following question: "Leaving out of view the delusion that you were first under, when you saw an individual at and going round the house in which the mur der was committed on the evening of Friday, March 16, that it was the brother of the deceased; and taking into consideration the description which you have heretofore given of the person of the individual whom you there saw, and supposing that the hat now exhibited to you, and which has been shown to have been worn by the accused on the day on the evening of which the murder was committed, had been worn by him (the defendant) on the seventeenth March when he appeared before the coroner's inquest, and, also, the shirt which he now has on, in an unwashed state, and also the pants which he now has on, would you, on that occasion, have had any doubt of the identity of the accused with the person above described and referred to?" Defendant's counsel objected to this question, on the grounds that it presents a "supposititious " case; that it is an attempt to elicit the opinion of the witness on a state of facts not established, and to elicit the witness's conclusions from a supposed state of facts-functions belonging exclusively to the jury. The objections were overruled and the witness allowed to answer. We think the court erred. This question is doubly objectionable. It assumes as true, and as already proved, two important facts, to wit: that the witness's first impression (that the person he saw was the brother of deceased) was a delusion; secondly, that the identical hat exhibited had been worn by the deceased on the day of the murder. In the next place, it is an attempt to identify a person upon a supposed state of facts, and that by the opinion of the witness. The witness had evidently testified that he took the person seen going round the house where the deceased was shot to be her brother. The question requires him to ignore this impression as a delusion, then proceeds to dress up and exhibit to the witness a man of straw, and then solicits the witness's opinion whether he would have entertained any doubt of the identity of that imaginary man with the accused. It was the province of the witness to state facts, and of the jury to draw inferences, opinions, and conclusions from those facts. In asking a question it is not permissible to assume as true facts which the jury is alone charged with finding. Thus, whether the witness's first impression was or was not a delusion, whether the hat exhibited was or was not the one worn by accused on the day of the murder, were questions to be determined by the jury. upon the facts sworn to by the witnesses, and not upon the assumption of the counsel. Greenleaf, in Part 3, chapter 3 434, says: "The interrogatory must not assume facts to have been proved which have not been proved, nor that particular answers have been given which have not been given. |