
    (96 South. 110)
    No. 25430.
    CITY OF NEW ORLEANS v. VINCI.
    (Nov. 27, 1922.
    On Rehearing, April 2, 1923.)
    
      (Syllabus by the Court.)
    
    On Motion to Dismiss.
    1. Courts <&wkey;224(7) — Supreme Court has jurisdiction when illegality of ordinance in contest, though ordinance sustained.
    Article 7, § 10, Const. 1921, gives this court appellate jurisdiction in all cases “where the legality, or constitutionality of any fine, forfeiture, or penalty imposed by a parish, municipal corporation, board, or subdivision of the state shall be in contest, whatever may be the amount thereof”; and it is not necessary that the ordinance imposing same shall have been declared illegal or unconstitutional. As to acts of the Legislature, the Constitution provides a different rule.
    On the Merits.'
    2. Food &wkey;sl— Ordinance not oppressive or illegal because requiring seller to ascertain whether milk is within prohibition.
    An ordinance intended to suppress the sale of unwholesome or adulterated milk is not oppressive or illegal because, in the public interest, it puts upon the seller the burden of ascertaining at his peril that the article he sells is not within the prohibition- of the ordinance.
    
      (Additional Syllabus by Editorial Staff.)
    
    On Rehearing.
    3. Criminal law &wkey;l 134(3) — Appeal from judgment on demurrer dismissed as moot where appeal on merits has resulted in acquittal.
    > Appeal from judgment overruling demurrer will be dismissed as moot where since rendition of such judgment appeal to criminal district court on the merits has been tried and resulted in defendant’s acquittal.
    Appeal from First Recorder’s Court of New Orleans; J. R. Leininger, Recorder.
    'Criminal prosecution by the City of New Orleans against Thomas Yinci, Sr., for violation of a municipal ordinance. From á judgment overruling. a demurrer, defendant appeals.
    Appeal dismissed on rehearing.
    Alf 3. Bonpmo, of New Orleans, for appellant.
    Ben Daly, of New Orleans, for appellee.
    St. Clair Adams, of New Orleans, amicus curias.
   On Motion to Dismiss.

ST. PAUL, J.

Defendant was convicted of violating -an ordinance of the city of New Orleans. He put at issue in the court below, the constitutionality and legality of the ordinance.

The appellee moves to dismiss the appeal on the ground that this court is without jurisdiction, the trial court not having declared' the ordinance unconstitutional or illegal, but, on the contrary, having sustained said ordinance, and defendant having been fined only $10.

The motion to dismiss must be denied. Article 7, § 10, Constitution of 1921 (article 85, Const. 1898 and 1913; article 81, Const. 1879), gives this court appellate jurisdiction in all cases “where the legality, or constitutionality of any fine, forfeiture, or penalty imposed by a parish, municipal corporation, board, or subdivision of the state shall be in contest, whatever may be the amount thereof,” as well as in cases where the ordinance has actually been declared unconstitutional. (Italics ours.)

It is clear, therefore, that it suffices to give this court jurisdiction that the constitutionality or legality of the ordinance was “in contest,” even though it was not declared to be unconstitutional. In Shreveport v. Mackie, 140 La. 724, 73 South. 842, this court entertáined an appeal in a case where the legality of a municipal ordinance was merely in contest, and the ordinance not been declared illegal or unconstitutional. It is true, however, that no point of jurisdiction appears to have been made.

Crowley v. Brande, 128 La. 457, 54 South. 940, and Wolf v. Commission Council, 144 La. 107, 80 South. 216, holding views in conflict with those herein above expressed/ are now overruled.

Young v. Crowley, 131 La. 780, 60 South. 242, McMain v. Pollock, 108 La. 594, 32 South. 558, and McCune v. White, 137 La. 310, 68 South. 621, have no application, as those cases involved acts of the Legislature, as to which the Constitution makes no such provision for an appeal to this court except where the statute has actually been declared unconstitutional.

The motion to dismiss is therefore denied.

O’NIELL, J., being absent from the state, takes no part in the decision of the case.

On the Merits.

ST. PAUL, J.

Defendant was charged with having in possession (for sale) “milk below standard,” in violation of Ordinance No. 6835, New Council Series, which defines milk not of standard quality to be “milk having less than 3% per cent, of butter fats, or having less than 8% per cent, of solids other than butter fats, or containing any pathogenic or disease germs.”

■ The defendant demurred to the charge on the ground that the ordinance is—

“illegal, unreasonable and oppressive, for the reason that it places an onerous burden on dealers other than dairymen, and would require the constant employment of a competent chemist in order to comply with the provisions of said ordinance.”

Of course, the ordinance does not concern itself with the method which a dealer may adopt to ascertain whether the milk which he purposes to sell is wholesome and unadulterated; but it does impose upon him the duty of ascertaining that fact. And, if it did not, then it would be a vain and idle piece of legislation, since the dealer who sells unwholesome or adulterated milk would always shield himself behind the pretense that he had no knowledge of the unwholesome character of what he sold; and the community would be at the mercy of unscrupulous dealers and dairymen, each casting the blame upon the other, and all escaping liability because of the impossibility of establishing with certainty who was directly at fault.

In Commonwealth v. Wheeler, 205 Mass. 384, 91 N. E. 415, 137 Am. St. Rep. 456, 18 Ann. Cas. 319, the Supreme Court of Massachusetts had under consideration a statute containing substantially similar provisions, the court said:

“The sections referred to are a part of an elaborate system of legislation regulating the sale of milk, particularly directed to the prevention of * * * adulterated or unwholesome milk. * * * It has often been decided that, in the public interest, the burden of ascertaining at his peril whether an article that he sells is within the prohibition of a criminal statute may be put upon the seller.”

Decree.

The judgment appealed from is therefore affirmed.

O’NIELL, J., being absent from the state, takes no part in the decision of the case.

On Rehearing.

OVERTON, J.

The defendant in this case took two appeals from judgments of the recorder’s court against him, one to this court, from a judgment overruling his demurrer to the charge preferred against him, and the other to the criminal district court of the parish of Orleans from the judgment of conviction and the- sentence imposed, based on the conviction.

Since the rendition of the original judgment of this court on the demurrer, it has been admitted by counsel for the city and.-for the defendant that the appeal on the merits to the criminal district -court has been tried, and that the trial has resulted in the acquittal of defendant.

As áefendant has been acquitted, he has lost all interest to prosecute this appeal further. Whatever judgment this court might render on the demurrer could not affect him, since there is no longer a charge against him. Hence the question brought here has become a moot one, and there remains nothing to do but to dismiss the appeal, as this court will not pass on moot questions, and, moreover, is without right or power to do so.

For the reasons assigned, it is ordered, adjudged, and decreed that the appeal herein be dismissed at appellant’s costs.  