
    No. 8582.
    State of Louisiana vs. John Patamia.
    The power of the City of New Orleans to inflict fine or imprisonment is confined and restricted to transgressions of ordinances under its police power, and cannot be extended to transgressors of ordinances looking to revenue, Reaffirming Municipality vs. Pance, 6.A. 515: and State vs. Mauessier, Opinion Book 53, p. 237.
    -A.PPEAL from the Second Recorder’s Court of New Orleans.
    
      O. F. Buck, City Attorney, Wynne Rogers, for Plaintiff and Appellee :
    Ordinance No. 7668, A. S., is not repugnant to the provisions of Arts. 1, 203, 218 and206 of the Constitution of 1879.
    “It does not interfere with the citizen in the enjoyment of life, liberty and property.” Jt is not a tax upon property, nor a license to pursue any particular calling
    Ordinance No. 7668, A. S., is a prohibitory one. Tt prohibits the sale of comestibles at certain places and at certain hours of the day, as mentioned in its provisions.
    The penalty is for the violation of the prohibitory clauses of said ordinance, and not to enforce the collection of any dues mentioned therein.
    The general powers of the City under its charter are sufficient to warrant their enacting the necessary ordinances, controlling the management of public markets aud the sale of comestibles, in the interest of the public. 2 La. p. 217; 27 An. p. 417; Lamarque vs. City of New Orleans, 1st McGloin. p. 28.
    Those comestibles were sold at and on tbe wharves of New Orleans, within her corporate limits.
    
      W. 0. Flower, M. Renshaio, Jr., for Defendant and Appellant:
    The ordinance complained of is opposed to the following articles of the Constitution of 1879. viz: Arts. 203, 218, 206, and 1; aud also to Sec. 12, ($§19-20) of the Charter of New Orleans. (Act 7 of E. S., of 1870.)
    The ordinance is unreasonable; is in restraint of trade, and is not impartial. — 16 Pickering, 125 ; 5 Cowen, 462.
    The City has no authority to enforce the collection of taxes, licenses, or dues, by fine or imprisonment. — See oases of Municipality No. 1 vs. Pance, 6 An. 515 ; and case of State vs Mannessier, (Opinion Book No. 53, p. 237.)
    The ordinance is ultra vires.
    
    It deprives one person of his property for the benefit of another, without any corresponding advantage to the person so deprived, — 31 An. 66.
    The ordinance assumes to operate beyond the corporate limits of New Orleans.— Act 7 of E. S. of 1870, § 1 and 2; 5 La. 465; 17 La- 574; 9 A. 323.
   The opinion of the Court was delivered by

Pociié, J.

This is an appeal from a sentence of ten dollars fine and, in default, to an imprisonment of twenty-four hours, and it involves the legality of Ordinance No. 7668, Administration Series, of New Orleans, which defendant admits to have violated, by selling potatoes within the prescribed limits and hours, and which reads as follows:

“Be it ordained, That Section 24 of Ordinance No. 6784, be amended and re-enacted, so as to read as follows :
“That n.o person shall be permitted or allowed to sell from any lugger, pirogue, flatboat, or other small craft, landing or lying between the lower line of St. Ann street, and the upper line of Esplanade street, during market hours, any fruits, vegetables, or other articles of food usually sold in the public markets, without paying to the Administrator of Commerce, or the market lessee or lessees, the sum of one dollar per day, for evéry day they are so selling; and any person violating the provision of this Ordinance, and this Section, upon being found guilty thereof, before the recorder, or police magistrate, having jurisdiction, shall be fined in a sum.not less than ten dollars, nor more than twenty dollars, or imprisoned for a term not to exceed ten days.”

Among other errors charged by the defendant, he urges that under the laws of the State and under its charter, the City of New Orleans has no power to enforce the collection of its revenues by fine or imprisonment.

The defense involves the proper construction of the ordinance under which the defendant has been prosecuted and condemned to pay a fine, or to be imprisoned.

The ordinance does not make it an absolutely penal offense to sell potatoes within the prescribed limits, but the penalty attaches to the party who carries on that trade without first paying the sum of one dollar a day for every day on which he may sell. Hence, it is clear that the Act in itself is not prohibited, but, on the contrary, it is specifically authorized on the condition stipulated in the ordinance. It is, therefore, impossible to escape the conclusion that the ordinance is framed with the evident intent and object of raising a revenue, and that it cannot be tortured or explained out of its true and unambiguous meaning, so as to be construed as an ordinance depending upon the police power of the City.

In the ease of the State vs. A. Manessier, Opinion Book No. 53, p. 237, we had occasion to construe and pass upon a similar ordinance, and we held that it was illegal and could not be enforced.

In that case the defendant was prosecuted for selling ice-cream without paying the required license, and he had been sentenced under an ordinance providing a penalty by fine or imprisonment, against persons following that trade without paying their license.

We then held that the only power of inflicting fine or imprisonment conferred to the City of New Orleans, “ was for the punishment of transgressions of police regulations,” and that such power could not he extended to ■“violations of ordinances looking to the raising a revenue for the City.”

A similar ruling was made in the case of Municipality No. 1 vs. Pance, 6 An. 515.

We see no feature in this case differing from these two cases, and we must hold that part of the ordinance which provides a penalty by flue or imprisonment for its infraction, as illegal, null and void.

We abstain from any expression of opinion on the other defenses urged by the defendant, involving the right of the City to exact the payment of dues or license for the privilege of following this particular trade within the limits prescribed in the ordinance.

It is, therefore, ordered, adjudged and decreed, that the sentence of the Recorder’s Court be annulled, avoided and reversed, that the prosecution against John Patamia be dismissed, and that he he discharged from arrest and custody.

Bermudez, C. J., concurs iu the decree.

Levy, J., absent.  