(67 South. 935)

No. 20860.

#### STATE v. HAGEN.

(Feb. 23, 1915.

Rehearing Denied March 22, 1915.)

*(Syllabus by the Court.)*

1. Criminal Law <&wkey;1017 — Intoxicating Liquors <&wkey;10 — Ordinance of Police Jury-Power to Enact — Appeai>-Jubisdiction.

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 *869jury, ordinances, as well aá to those arising under the ordinances of cities, towns, and villages.

Note. — A majority of the members of the court concur in the decree in this case, on the ground that the ordinance, under which defendant was convicted, was unauthorized; the members in the minority, including the organ of the court, are of opinion that, under the law in force when the ordinance was adopted, it was authorized, but that it was superseded by a statute enacted, pending defendant’s appeal to this court, which contained no saving clause, and hence that the sentence appealed from cannot be affirmed, and that no sentence can be imposed under the later statute, which is ex post facto. . .

[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. _§§ 2572-2576, 2589; Dee. Dig. &wkey;>1017; Intoxicating Liquors, Cent. Dig. §S 7-12; Dec. Dig. &wkey;10J

*(Additional Syllabus by Editorial Staff.)*

2. Criminal. Law &wkey;3l017 — Appeal—Jurisdiction — “Municipal Corporation. ’ ’

A “municipal corporation” is a body corporate and politic, established by law to share in the civil government of the country, but. chiefly to regulate and administer the local and internal affairs of the city, town, or district incorporated. As used in Const, art. 85, extending the appellate jurisdiction of the Supreme 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, the term “municipal corporation” includes “parish” (citing Words and Phrases, Municipal Corporation).

[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2572-2576, 25S9; Dec. Dig. &wkey;1017.]

O’Niell, J., dissenting.

Appeal from First Judicial District Court, Parish of Caddo; J. R. Land, Judge.

Emmet Hagen was convicted of unlawfully maintaining a public nuisance, and appeals.

Reversed, and defendant discharged.

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.

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 tljis court is without jurisdiction of the appeal.

[1] It will be observed, however, that de^ fendant, 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 lqw 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 ease here presented.

It is clear, from the foregoing, that if the fine and penalty, the constitutionality and le*871gality 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.

[2] 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) wé 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 schopls, 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 is vested, and by and against whom suits may be brought. See 1 B. & Aid. 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 Eire Dept.] 31 N. *Y.*Super. Ct. 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 *873recover 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 and control of the state in matters of internal government,’ ” etc.

The general definition given by Judge Dillon is as follows:

> “Sec. 19. Municipal corporations are bodies politic and corporate, * * * established by law to assist in the civil government of the country, but chiefly to regulate and administer the local or internal affairs of the city, town, or district which is incorporated. We may therefore define a municipal corporation to be the incorporation, by the authority of the government, of the inhabitants of a particular place or district, and authorizing them, in their corporate capacity, to exercise subordinate specified powers of legislation and regulation with respect to their local internal concerns.” Dillon on Mun. Corp. (3d Ed.) vol. 1, p. 19.

It is true that the learned author thereafter explains that there is a difference between municipal and other public corporations, and that, though all municipal corporations are public bodies, created for civil or political purposes, all civil, political, or public corporations are not, in the proper use of language^ municipal corporations, and that:

> “The phrase ‘municipal corporations,’ in the contemplation of this treatise, has reference to incorporated villages, towns, and cities, with power of local administration, as distinguished from other public corporations, such as counties and quasi corporations.”

> “The distinction between municipal corporations proper,” the author continues, “such as chartered towns and cities, or towns and cities voluntarily organized under general incorporating acts, such as exist in a number of the states, and involuntary quasi corporations, such as counties, has been very clearly drawn by the Supreme Court of Ohio.”

And a definition is quoted from Hamilton County v. Mighels, 7 ‘Ohio St. 109, to the effect that a municipal corporation proper is called into existence either at the direct solicitation or by the free consent of the persons composing it, and for their own local and private advantage and convenience, while counties are, at most, but—

> “local organizations, which, for purposes of civil administration, are invested with a few functions characteristic .of corporate existence. * * * They are local subdivisions of the state, created by the sovereign power of the state, of its own sovereign will, without the particular solicitation, consent, or concurrent action of the people who inhabit them.”

In Words and Phrases, under the title “Municipal Corporations,” we find (volume 5, p. 4620):

> “A municipal corporation is a body corporate and politic, established by law to share in the civil government of the country, but chiefly to regulate and administer the local or internal affairs of the city, town, or district incorporated [citing many authorities]. * * * The term ‘municipal corporations’ includes counties. Glenn v. York County Com’rs, 6 S. C. (6 Rich.) 412, 418. * *. * The term ‘municipal corporation’ includes a county, under the general municipal law. People v. Carpenter, 52 N. Y. Supp. 781, 783, 31 App. Div. 603. * * * The term ‘municipal corporations,’ in the clause in the Alabama Constitution providing that private property shall not be taken for private use, or for the use of corporations, other than municipal, without the consent of the owner, includes counties. * * * Const, art. 1, § 14, which provides that no right of way shall be appropriated to the use of any corporation, other than municipal, until full 'compensation therefor be first made, in money, etc., refers to *875such corporations as are for the purpose of public government, and therefore includes counties. Pacific Coast Ry. Co. v. Porter, 15 Pac. 774, 775, 74 Cal. 261. * * * ”

> • “The constitutional amendment empowering the Legislature to authorize municipal corporations to levy assessments for local improvements, without regard to the cash value of the property assessed, held to authorize 'such legislation with respect to counties. Dowlan v. County of Sibley, 31 N. W. 517, 518, 36 Minn. 430.” Id. p. 4624.

> “The'word ‘municipal,’ as originally used, in its strictness applied to cities only; but the word has now a more extended meaning, and, when applied to corporations, the words ‘political,’ ‘municipal,’ and ‘public’ are used interchangeably. Curry v. District Tp. of Sioux City, 17 N. W. 193, 192, 62 Iowa, 102 (cited in Port of Portland, 27 Pac. 263, 264, 20 Or. 580, 13 L. R. A. 533).” ‘

It will be observed that Judge Dillon speaks of “involuntary quasi corporations, such as counties,” and that the Supreme Court of Ohio, whose definition he adopts, refers to counties as “but local organizations which * * * are vested with but few functions characteristic of corporate existence,” and which are “created by the sovereign power of the state, w * * without the particular solicitation, consent, or concurrent action of the people who inhabit them.” And what is thus said may be true, in a general sense, when considered with reference to conditions existing in other states, and which, at one time, existed in this state; but it does not accurately describe the conditions now existing and which have existed in Louisiana for the past 30 years and more. The Louisiana Constitution of 1812 mentions the existence of certain “counties”. into which the state was then divided, provides for their representation in the General- Assembly, and contains no other reference to them, and the succeeding Constitutions, up to that of 1879, were equally reticent upon that subject. The Constitution last mentioned, and those of 1898 and 1913, however, contain among others the following provisions (giving the numbers of the articles in the present Constitution!, to wit:

> “Art. 277. The General Assembly may establish and organize new parishes, .which shall be bodies corporate, with such powers as may be prescribed by law. * * *

> “Art. 278. All laws changing parish lines, or removing parish seats, shall, before taking effect, be submitted to the electors of the parish or parishes to be affected thereby, at a special election held for that purpose, and the lines, or parish seat, shall remain unchanged unless two-thirds of the qualified electors of the parish or parishes affected thereby vote in favor thereof at such election.

> “Art. 279. Any parish may be dissolved and merged by the General Assembfy into a contiguous parish or parishes, two-thirds of the qualified electors of the parish proposed to be dissolved voting in favor thereof at an election held for that purpose: Provided, that the parish or parishes into which the dissolved parish proposes to become incorporated consents thereto by a majority of its qualified electors voting therefor.” ,

It will be seen, therefore, that in Louisiana parishes are not now “created by the sovereign power of the state, without the particular solicitation, consent, or concurrent action of the people who inhabit them,” but that, to the contrary, they can neither be established nor disestablished without such consent and concurrent action. On the other-hand, there is no special act of the General Assembly incorporating any city or town in the state that may not bé repealed by the General Assembly, with or without the consent of the inhabitants, and the same is true of Act No. 136 of 1898, under which many of our cities, towns, and villages enjoy their corporate existence, and from which they derive their powers. Moreover, as the Constitution and the grants contained in Act No. 136 of 1898 furnish the measure of the powers conferred upon the cities, towns, and villages established under their authority, so the Constitution and the various acts of the General Assembly conferring powers upon the police juries furnish the measure of those powers, and include all of the general powers essential to the administration of local government, such as the power to levy taxes, to provide for the general welfare, to maintain peace and order, to incur debt and issue *877bonds (under certain circumstances and for certain purposes), to enact ordinances and provide penalties for their enforcement, and to do many other things that are specifically mentioned. Const. Arts. 59, 106, 174, 276, 277, 278, 279, 280, 281, 292, 293; R. S. § 2743 et seq.; Act No. 31 of 1880; Act No. 115 of 1S9S; Acts Nos. 66, 202, 221, of 1902; Acts Nos. 37, 204, 207, 315, of 1908; Acts Nos. 128, 151, 198, of 1910; Acts Nos. 81, 132 (incorporated as an amendment to the Constitution), 141, 145, 182, 219, 239, of 1912; Acts Nos. 11, 19, 135, 183, 192 (incorporated in the Constitution), 194 (incorporated in the Constitution), 197, 227, 296, 302, of 1914 (and probably many others).

The coupling, in the various Constitutions and statutes, of “parishes” with “municipal corporations,” by the conjunction “and,” no doubt, indicates that those terms were not regarded as interchangeable under all circumstances; but construing the provision in previous Constitutions, identical with that now under consideration, the court has apparently never for a moment doubted that they were intended to bear the same meaning, within the contemplation of that provision, and for some other purposes.

Thus, in Parker v. Scogin, 11 La. Ann. 629, the validity of an ordinance of the police jury of Caddo parish was challenged, upon the ground, among others, that a confession of judgment upon which it was based was not binding upon each individual taxpayer; but the court said:

> “The nature of municipal corporations is such that they, of necessity, represent all the citizens of the territory or district submitted to their jurisdiction by classes, as well as collectively.”

And the idea that a parish was not to be regarded as a municipal corporation, in that connection, does not seem to have suggested itself, though the amount involved in the case was sufficient, of itself, to have conferred jurisdiction on the court.

In Parish of Lincoln v. Huey, 30 La. Ann. 1244, defendant, having resisted the payment of a parish license for a grogshop, was 'condemned, and appealed, first to the district court, and then to this court, where it was said:

> “There was an appeal to the district court, which was properly dismissed, and this second appeal was taken direct from the parish court to this court. Our jurisdiction attaches by reason of the question involved — the legality of the tax — -without regard to the amount.”

In Parish of St. Landry ex rel. Fontenot v. Stout, 32 La. Ann. 1278, defendant appealed from a judgment condemning him to fine or imprisonment, under an ordinance of the police jury, and a motion was made to dismiss the appeal, upon the ground, apparently, that this court was without jurisdiction. But it was said:

> “It is a case involving ‘the constitutionality or legality of a fine imposed by a municipal corporation,’ and is therefore appealable.”

In State and Police Jury v. Isabel, 40 La. Ann. 340, 4 South. 1, defendant, by demurrer, attacked an ordinance of the parish of Jefferson, under which he was prosecuted, and, his demurrer having been sustained, and the state and parish having appealed, he moved to dismiss the appeal, on the ground that the case was unappealable. The court said:

> “This is untenable. . It is apparent from the above statement that the case involves a contestation as to the constitutionality or legality of a fine or penalty imposed by a municipal corporation. This authorizes an appeal to this court under article 81 of the Constitution.”

In State v. Miller, 41 La. Ann. 55, 7 South. 672, defendant appealed from a sentence of fine or imprisonment imposed under an ordinance of a police jury, and it was said by the court:

> “The suggestion that we have no jurisdiction in such a case is without merit. It is undoubtedly a case ‘wherein the constitutionality or legality of a fine or penalty, imposed by a municipal corporation is in contestation,’ and of all such cases, without limitation, article 81 of the Constitution invests this court with jurisdiction.”

*879In Howcott v. Smart, 125 La. 50, 51 South. 64, it was found that taxes levied by a police jury were challenged as illegal, and it was held that this court was vested with jurisdiction of the appeal. It appears, therefore, that counties (or, as in our case, parishes), even though they be quasi corporations, with no definite charters, are held by all the authorities to be, in some sense, if not strictly, technically, and for all purposes, municipal corporations; that they are so held by some courts for some purposes, and by other courts for other purposes, the matter depending upon the language and purpose of the law to be construed. It further appears that, in this instance, the language of the law, considering the context as well as the clause which is immediately applicable to the case, extends the appellate jurisdiction of this court to—

> “all cases in which the constitutionality or legality of any tax, toll or impost whatever” (meaning any tax, toll, or impost levied by the state, no matter bow small the amount involved), “or in wbicb any fine, forfeiture, or XDeualty, imposed by a municipal corporation, whatever may be the amount thereof, shall be in contestation,” and to “all other cases” (regardless of tho amount involved and of all other considerations) “wherein an ordinance of a municipal corporation or a law of the state has been declared unconstitutional.”

The purpose of these provisions would therefore seem to have 'been, in the one case, to afford to the citizen an appeal to the court of last -resort as against an illegal or unauthorized tax or penalty, whether imposed directly by the state or under its authority, and to afford the same relief to the state as against attempts to defeat the collection of such taxes or penalties, when authorized and legal, and, in the other case, to afford that relief to the state in cases where inferior courts may nullify, as unconstitutional, its laws, enacted by the General Assembly or by its authorized agents; and, if that be the purpose, it would not be half accomplished, and much confusion would result, if this court should decline to entertain jurisdiction in a case in which the constitutionality or legality of a tax or penalty imposed by a parish (or police jury, acting for a parish) is in contestation, and yet exercise such jurisdiction in a similar case arising under an ordinance of a city, town, or village within such parish, since of the 1,800,000 people (approximately) now constituting the population of the state nearly two-thirds live under the immediate dominion of the parish ordinances, and of the total assessed values in the state a very large íxroportion, certainly, is similarly situated.

We have shown that Chancellor Kent and the Supreme Court of the United States, long since, defined a municipal corporation to he a “public corporation, created by the government for political purposes, and having subordinate local powers of legislation,” and that they included in the definition such political subdivisions as “counties,” though they were regarded as mere quasi corporations, without special charters, and with perhaps but feeble powers, and that lexicographers and text-writers are still making use of that definition; and we have also shown that a parish, under our system, is so well within the definition that it would be impossible to exclude it without doing violence to the plain meaning of plain English words. Why, then, may we not assume that the framers of our Constitutions have taken it for granted that the courts, in construing the language used by them, would accept the broader interpretation which had thus been given and accepted by others, rather than defeat the plain and reasonable purpose of that language by adopting an interpretation which, apparently, with a view of distinguishing the subject of particular treaties on corporation law, has narrowed the application of the term “municipal corporation” to a particular class of public corporations, though admittedly all such corporations, for some purposes, if not *881for others, fall within the meaning of that term, and, more particularly, since, as we have seen, new parishes can be created in this state only by the consent of the inhabitants, and, when created, are constituted “bodies corporate,” thus eliminating the two main features which are said to distinguish “counties” from “municipal corporations proper.”

We find no sufficient answer to the question thus suggested, and, concluding to adhere to our jurisprudence as established, hold that the court is vested with jurisdiction of this appeal. The motion to dismiss is therefore denied.

On the Merits.

Act No. 221 of 1902, p. 451, is entitled and reads in part as follows:

> “An act to amend and re-enact sections 1211 and 2778 of the Revised Statutes of the state of Louisiana, relative to granting or withholding licenses for the sale of intoxicating liquors.

> “Section 1. * * * That sections 1211 and 277S of the Revised Statutes of 1870 be amended and re-enacted so as to read:

> “ ‘That police juries of the several parishes of the state, the municipal authorities of the several villages, towns and cities, and the city council of the city of New Orleans shall have exclusive power to make such rules and regulations for the sale or the prohibition of the sale of intoxicating liquors, as they may deem advisable, and to grant or withhold licenses from drinking houses and shops within the limit of the city, parish, ward of a parish, town or village, as a majority of the legal voters * * * may determine. * * . * ’ ”

Act No. 315 of 1908, p. 482, provides:

> _ “Section 1. * * * That * * * the police juries of the parishes shall have full power and authority to enforce such ordinances as they are authorized to phss, by fine or imprisonment, or both, to prosecute by criminal process of indictment or information, or by fine or forfeiture, to be collected by civil process before any court of competent jurisdiction.

> “Sec. 2. * * * That no fine shall exceed 8100 and imprisonment shall not exceed 30 days in parish jail, or both, at the discretion of the court.”

The defendant now before the court is prosecuted under a bill of information, filed March 10, 1914, which charges that, on that (or possibly an earlier) day—

> “being then and there the lessee or owner of a certain room located in the upstairs of building No. 327 Texas street, Shreveport, * * * [he! unlawfully, did keep a blind tiger, and maintain a public nuisance, by then and there keeping in said room a large quantity of whisky and beer, for sale, barter, or exchange, or giving away, to wit: 1 cask of quart bottles of Yellow Stone whisky; % cask of % bottles of Hill & Hill whisky; % cask of Budweiser beer-contrary to the form of the statute of the state of Louisiana in such ease made and provided, and against the peace and dignity of the same, in violation of the police jury ordinance of Caddo parish, and” (sic).

This prosecution is conducted in the name and on behalf of the state of Louisiana, by the district attorney for the First judicial district, but is conceded to be a prosecution under “police jury ordinance of Caddo parish” and the “statute of the state of Louisiana,” referred to in the bill, meaning, as we take it, the statutes above quoted, which are regarded as the authority under- which, the ordinance was enacted. The ordinance bears date June 12, 1913, and is entitled and reads in part:

> “An ordinance for the suppression of the blind tiger and the enforcement of the prohibition law in the parish of Caddo.

> “Section 1. Be it ordained: * * * That any house, store, room or any other place where intoxicating liquors are kept for the purpose of sale, barter, exchange or giving away as a beverage, or where it is kept, whether for sale or not, in a place where near-beer is displayed or kept for sale, or in a place where gambling is permitted, shall be deemed a blind tiger, and the same is hereby declared to be a nuisance, and the owner of said room, together with all keepers, clerks * * * and the owner of the intoxicating liquors shall be deemed guilty of keeping a blind tiger and maintaining a public nuisance, ánd shall be prosecuted, by indictment or information, and, upon conviction, shall be fined not less than 8S0, nor more than 8100, and, in defanlt of payment, * !! * shall work out the same on the public roads * * * at the rate of one dollar per day, or shall suffer imprisonment not less than ten and not more than thirty days, or both, at the discretion of the court; and, for each 24 hours that said nuisance is maintained, it shall be deemed a separate offense.”

Section 2 provides that, when three reputable persons shall make oath, before a judge *883or justice of the peace, that “he” has reason to believe, or does believe, that intoxicating liquors are being illicitly kept in any house, etc., for the purpose of illicitly disposing of the same, or in any place where near-beer is displayed, or where gambling is permitted, and describing the place, or pointing out the keeper, owner, or lessee thereof, it shall be the duty of the judge to issue a warrant directing the sheriff, or constable, to visit such place and ascertain the truth, and, if such officer shall find evidence of such illicit business, he shall arrest all persons found in charge, and the owner, keeper, clerk, or lessee of the premises, and the owner of the liquors, and carry them before a competent court, where they shall be prosecuted “by information or indictment,” and, if convicted, fined not less than $80, nor more than $100, and, in default of payment, shall work out the fine, at the rate of $1 per day, on the public .roads, or be imprisoned not less than 10 nor more than 30 days, or both, at the discretion of the court, and shall be ordered to abate the nuisance.

Section 3 provides that it shall be the duty of the officer making the search to seize any intoxicating liquors found by him, and bring them before the judge, and hold them as evidence, and, in the event of the conviction of the party charged, the judge shall order them destroyed.

Section 4 provides that, where liquors are so found, under circumstances indicating that the place is being kept as a grog or tippling shop, or for retailing liquors, the officer shall charge the parties implicated with “violating the prohibition law as well as keeping a blind tiger.”

Section 5 provides that, if the judge shall find that the parties charged are not guilty, the liquors seized shall be returned to them, save such as may have been used in determining whether they were intoxicating. Defendant’s conviction took place on July 9, 1914, and, sentence having been imposed on July 11, he appealed-, and lodged his appeal in this court on August 24, 1914.

In the meanwhile, on July 8, 1914, the Governor approved Act No. 146 of 1914, which is entitled and reads in part:

> “An act to define and prohibit the keeping of a ‘blind tiger’; to provide for the search of same, and for the seizure and destruction of any spirituous, malt or intoxicating liquor found therein; to provide for the punishment of any violations of this act.

> “Section 1. * * * That a ‘blind tiger’ is hereby defined to be any place in those subdivisions of the state where the sale of spirituous, malt, or intoxicant liquors is prohibited, where such spirituous, malt or intoxicant liquors are kept for sale, barter, exchange or' habitual giving away as a beverage in connection with any business conducted at such place.

> “Sec. 2. * * * That the keeping of a ‘blind tiger’ is hereby prohibited, and whoever shall be guilty of violating this act shall be guilty of a misdemeanor.”

Section 3 provides for the issuance of a warrant and the searching of a place suspected of being a “blind tiger,” and the bringing into court of any person and intoxicating liquors there found.

> “Sec. 4. * * * That whoever shall be found guilty of keeping a ‘blind tiger,’ in violation of this act shall be fined not less than two hundred dollars, nor more than five hundred dollars, and be imprisoned for not less than 30 days nor more than 6 months, and on default of the payment of the fine and costs he shall be imprisoned for not more than 6 months additional.

> “Sec. 5. * * * That all laws and parts of laws in conflict herewith be and the same are hereby repealed.”

It is not disputed that the parish of Cad-do is one of those “subdivisions of the state where the sale of spirituous, malt, or intoxicating liquors is prohibited,” and it cannot, therefore, be denied that the statute last above quoted became operative in that parish when promulgated, and after defendant had been allowed his appeal; from which it follows, upon the face of the record (unless there be some sufficient reason, to the contrary), that he must be discharged, for, the law (in so far as it authorized the .particular ordinance in question) and the ordinance un*885der which he was sentenced having been superseded by said statute, the sentence imposed thereunder cannot be sustained, and the statute, being ex post facto quoad the offense with which he is charged, requiring a severer penalty than the law then in force, and containing no saving clause, no sentence can be imposed thereunder.

> “No conviction can take place for an offense after the statute creating it has been repealed. Therefore, if a prior law has been superseded by a statute inconsistent therewith, offenses already committed under the prior law cannot be punished, unless there is a saving clause, for the prior law is no longer in force, and the subsequent statute is not applicable to the offense already committed, because as to such offense it is ex post facto. There can be no legal conviction for an offense unless the act complained of be contrary to law at the time it is committed, nor can there be a judgment unless the law be in force at the time the indictment is found and judgment rendered thereunder.” McClain’s Or. Law, vol. 1, § 96.

> “It has long been settled, on general principles, that, after the expiration or repeal of .a law, no penalty can be enforced, or punishment inflicted, for violations of the law, committed while it was in force.” Yeaton v. United States, 5 Cranch, 281, 3 L. Ed. 101.

See, also, Kring v. State of Missouri, 107 U. S. 221, 2 Sup. Ct. 443, 27 L. Ed. 506; State ex rel. Theus v. Hickman, 127 La. 442, 53 South. 680; State v. Jones, 127 La. 768, 53 South. 985; State v. Guillory, 127 La. 950, 54 South. 297; Clark’s Crim. Law, 26.

If, now, it be said that Act No. 146 of 1914 deals with an offense against the state, whilst the ordinance deals with an offense against the parish, that the same act may constitute an offense against both state and parish, and may be punished by either or both, and hence that the act does not repeal or supersede the ordinance, but that they should be held to stand together, the answer may be briefly stated as follows, to wit:

The parish of Caddo, like the other parishes into which the whole state of Louisiana has been divided, is one of the numerous agencies which the state has established, and in which it has, by various acts of the General Assembly, and especially the acts of 1902 and 1908 (hereinabove quoted), vested certain governmental authority, including the authority to enact laws upon the subject of the sale, and the prohibition of the sale (as the electors may decide), of intoxicating liquors, within its territorial limits. Both of the statutes last mentioned are of state-wide application, and are in no sense special, save, perhaps, as to the city of New Orleans, which is named in the act of 1908; and by virtue of the authority thereby conferred the ordinance, under which the defendant herein has been prosecuted and sentenced, was enacted. Let it be conceded, for the sake of argument (though the writer hereof is not of that opinion), that, consistently with the provision of our fundamental law, which reads, “Nor shall any person be twice put in jeopardy of life or liberty for the same offense, except on his own application for a new trial, or where there is a mistrial, or a motion in arrest of judgment is sustained,” it is competent for the General Assembly to declare that the same act which it denounces as an offense against the state may be denounced as a separate offense by every parish, city, town, village, commission, or board which it may authorize to enact ordinances or make rules and regulations, and within the jurisdiction of which the act may be committed, and that each of these agencies may initiate a separate prosecution and impose a separate penalty therefor; let all that be conceded, and yet it cannot be denied that the power remains in the General Assembly to withdraw such declaration, and to repeal or supersede the law wherein it is contained, and the ordinances, rules, or regulations enacted and promulgated pursuant to its authority, whenever it shall see fit so to do.

A large majority of the adjudged cases sustain the proposition:

> “That the single act, being made punishable both by the state law and the municipal ordinance of the place wherein the act was commit*887ted, constitutes two distinct and several offenses • — an offense against the state and an offense against the municipality.”

Those ¿djudications deal, however, with the ordinances of what the writers call “municipal corporations proper” — that is to say, the ordinances of chartered cities and towns —and the real basis upon which they rest seems to be the necessity for such ruling in the interest of the “crowded modern urban centers of population.” McQuillin’s Mun. Corp. vol. 2, p. 1866.

If there is any case to be found in which the rules, regulations, or ordinances of county authorities have been accorded similar recognition, it has escaped our rather careful investigation; and we draw the inference that the government of the thinly settled rural districts, constituting the main body of the state, is regarded as remaining more directly under the control of the lawmakers of the state, an inference that is strengthened when we consider the meagerness of the provisions that are usually made for legislation, and the enforcement of legislation, by county authorities, as compared with those made in behalf of the chartered cities and towns. Even in regard to the status of the “municipal ordinance proper,” however, and its relation to the proposition hereinabove stated, the jurisprudence of the country, taken as a whole, appears to be in rather an unsatisfactory condition, as may be seen from the following excerpt from the latest and most exhaustive treatise on Municipal Corporations that has come within our observation, to wit:

> “No general rule can be laid down, respecting what matters are state and what are municipal, that will apply in all jurisdictions. This is usually made to depend, not alone upon the fundamental principles of decentralization in our system of government, and home rule for the local community, but as well upon the Constitution and course of legislation and judicial decision in the particular state. In no state is the line very accurately drawn where municipal power ends and state authority begins. This is especially true respecting offenses. * * *

> “The decisions on this subject are numerous and conflicting. Perhaps on no single topic of municipal corporation law have there been so many discordant utterances, even by the same courts and the same individual judges. But the best-considered eases, especially the more recent ones, have properly extended the sphere of activity of the municipal corporation in dealing with police offenses. The necessity of thus enlarging municipal jurisdiction is obvious to the careful student of the conditions and needs of the crowded modern urban centers of population. The earlier conceptions of our courts on this subject are less definite and satisfactory. Under the several grants of municipal powers, which, in general terms, include the authority to enact all necessary ordinances to preserve the peace and advance the local government of the community, the local corporation cannot provide by ordinance for the punishment of an act constituting a misdemeanor or crime by state statute. The cases in the note fully illustrate the rule.”

And there follows a citation of a number of cases, including New Orleans v. Miller, 7 La. Ann. 761; State v. McNally, 48 La. Ann. 1450, 21 South. 27, 36 L. R. A. 533:

> “It may only exercise such powers as legitimately belong to the local and.internal affairs of the municipality. In the performance of such functions much latitude is often permitted. But it is entirely competent for the Legislature to confer, in express terms, such powers as will enable the local corporation to declare by ordinance any given act an offense against its authority, notwithstanding such act has been made by statute a public offense and a crime against the state. And where the regulation of a specific matter has been thus expressly and exclusively given to the local corporation, whether it be intrinsically state or local, the corporation may exercise the power so conferred, unfettered, until, such time as it is legitimately withdrawn by the state. * * *

> “The enforcement of the fundamental rule that the ordinance must be in harmony or at least not inconsistent with the state law, has been the source of much confusion on this subject. The true doctrine appears to be that whether the city may exercise control of state offenses must be determined by the legislative intent. And such intent must also decide the manner in which the power is to' be exercised, and whether such control is to be exclusive, or whether it is to be exercised concurrently with that of the state.

> “The general doctrine, supported by the weight of authority, is that an act may be made a penal offense, under the statutes of the state, and that further penalties may be imposed for its commission or omission by municipal ordinance. But, to authorize such ordinance, the local corporation must possess sufficient charter-*889powers, and such powers must be exercised in the manner conferred and consistent with the Constitution and laws of the state. The cases present some discord respecting the nature of the grant of power necessary to sustain such additional regulations. The question of power seems to be the chief source of conflict.”

McQuillin’s Municipal Corporations, vol. 2, pp. 1858, 1860, 1863.

From Cooley’s Constitutional Limitations (7th Ed.) p. 278, we take the following:

> “2. Municipal laws must also be in harmony with the general laws of the state and with the provisions of the municipal charter. The charter, however, may expressly, or by necessary implication, exclude the general laws of the state on any particular subject, and allow the corporation to pass local laws at discretion, which may differ from the rule in force elsewhere.

> “But, in these cases, the control of the state is not excluded, if the Legislature, afterwards, see fit to exercise it; nor will conferring a power upon a corporation to pass by-laws and impose penalties for the regulation of any specified subject necessarily supersede t'he state law on the same subject, but the state law and the bylaw may both stand together, if not inconsistent. Indeed, an act may be a penal offense under the laws of the state, and further penalties, under proper legislative authority, be imposed for its commission by municipal laws, and the enforcement of the one would not preclude the enforcement of the other.”

In McClain on Criminal Law, vol. 2, § 1217, p. 378, we find:

> “As pointed out in the preceding section, there may be difficulty in determining whether a state statute, regulating the sale of liquor, continues in force in a city which, under the authority given it, passes ordinances respecting the same matter. In general, the power given to a city will not be deemed exclusive, but must be exercised in subordination to the general laws of the state.”

From Wharton’s Crim. Law (9th E'd.) vol. 1, § 293, p. 327, we take the following:

> “Where an offense, in its entirety, is cognizable by two sovereigns, the first sovereign that takes possession of the defendant and undertakes the prosecution of the offense absorbs the case, as a general rule, which action, if bona fide and complete, is a bar to the action of the other sovereign.”

> Note: “Wharton’s Cr. PI. *&*Pr. §§ 441. 442; Taylor v. Taintor, 16 Wall. 367 [21 L. Ed. 287]; [Coleman v. Tennessee] 97 U. S. 509 [24 L. Ed. 1118].

The remaining question is whether, in fact and law, the state has repealed or superseded the statutes ’ of 1902 and 1908 in so far as they purport to authorize the enactment of the ordinance under which defendant is prosecuted, and whether it has repealed or superseded that ordinance; and that question is to be determined according to the accepted canons which are applied to the interpretation and construction of laws.

The act of 1902, in its application to Caddo parish, as a parish in which the voters have determined that the sale of intoxicating liquors shall be prohibited, authorizes the police jury to make such rules and regulations as it may deem advisable to enforce the prohibition ; and in the exercise of that authority, and of the authority conferred by the act of 1908, the police jury enacted the ordinance here in question, defining and denouncing the offense of keeping a “blind tiger” and imposing certain penalties therefor. Something less than a year later the General Assembly passed Act 146 of the session of 1914, being an act to define and prohibit the keeping of a “blind tiger,” etc., declaring, among other things, that a “blind tiger” is hereby defined to be:

> “Any place in those subdivisions of the state where the sale of * * * liquors is prohibited, where such * * * liquors are kept for sale, etc.

The definition and the penalty given and denounced by the act differ materially from those provided by the ordinance, and there is no doubt that the act was intended to be applied in all prohibition parishes, since it so declares in terms, and, unless it is to be so applied, it is entirely ineffective. On the other hand, being, as we hold, effective in Oaddo parish, it repeals by implication, or supersedes, all pre-existing and inconsistent or conflicting laws, purporting to deal with the same subject and operating in that parish, since it contains the last expression of *891the will of the supreme lawmaking power of the state, and the ordinance in question is one Of those laws.

It is therefore ordered that the conviction and sentence appealed from be set aside, and the defendant discharged, without day.

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. See 67 South. 942.