On Rehearing. The five accused were charged in separate bills of information filed on October 20, 1941, in the 16th Judicial District Court for the Parish of St. Mary, this State, with having on August 18, 1941, unlawfully caught "salt water shrimp in the waters of this State not having had a continuous residence in the State of Louisiana for two years prior *Page 273 to such taking contrary to the form and statute, * * *."
The defendants filed an exception to the jurisdiction of the court on the ground that the venue of the alleged offense was outside of the territorial limits of the Parish of St. Mary. They also filed demurrers on the grounds: First, that the bills of information failed to set forth any offense under the laws of this State and that, if such an offense was charged, it was cognizable only in the federal courts, having been committed on the high seas; Second, that the statute under which the defendants were charged only applied to individuals or corporations engaged in fishing, canning, or drying shrimp, and did not include the employees of such persons or corporations; and, third, that Sections 3 and 4 of Act 314 of 1940, which they were charged with violating, were unconstitutional, being contrary to the provisions of Sections 2 and 9 of Article 1 of the State Constitution of 1921 and the Fifth and Fourteenth Amendments to the Federal Constitution.
The cases were consolidated for trial, upon an agreed statement of facts.
The learned trial judge, in one judgment, overruled the exception to the jurisdiction but maintained the plea of unconstitutionality of Section 3 of the statute and discharged the defendants. Only the State appealed.
This court, in its original opinion, affirmed the judgment of the district court holding that Section 3 of the statute was unconstitutional but did not pass upon the plea to the jurisdiction of the court. The *Page 274 State applied for a rehearing, which was granted, and the case was reargued and submitted.
It is clear that unless the venue of the alleged crime was within the boundaries of the Parish of St. Mary, the district court was without territorial jurisdiction to consider the case and, therefore, was lacking in power and authority to decide the other issues in the case and particularly those on the merits. The first question to be decided is whether or not the district judge was correct in maintaining jurisdiction.
The point made by the State that the above issue is not before this court because the defendants did not either except to the judgment overruling the plea to the jurisdiction or appeal therefrom is without merit, as the error complained of by the defendants, if any, is patent on the face of the record.
The relevant part of Section IX of Article 1 of the Constitution of the State of Louisiana of 1921 reads:
"* * * provided further, that all trials shall take place in the parish in which the offense was committed, unless the venue be changed; provided further, that the Legislature may provide for the venue and prosecution of offenses committed within one hundred feet of the boundary line of a parish. * * *" (Article 13 of the Code of Criminal Procedure contains this identical provision.)
In the case of State v. Nugent, 191 La. 198, at page 200,184 So. 746, 747, this court said:
"Under the provisions of Section 9 of the Bill of Rights of the Constitution of 1921 *Page 275 a person accused of a crime has the right to have a plea to the territorial jurisdiction of the trial court passed on by the trial judge before being put on trial for the alleged offense. This provision of the Constitution not only guarantees the defendant that he shall not be convicted in any other parish than that in which the offense was committed but guarantees that he shall not be tried in any other parish. This identical question was decided in the case of State v. Hogan, 157 La. 287,102 So. 403, wherein this Court, after reviewing all the prior decisions on this subject matter, concluded that the defendant is as a matter of right entitled to have his plea to the territorialjurisdiction of the court decided before being placed on trialfor the offense." (Italics ours.)
When Spain ceded Louisiana to France, the southern boundary of what is now the State of Louisiana was described as the shore of the Gulf of Mexico. In 1803, when Louisiana was purchased from France, the southern limit was declared to be the shore of the Gulf of Mexico. In 1812, when the State of Louisiana adopted its first Constitution, the introductory part thereof described the State's boundaries as "beginning at the mouth of the river Sabine, thence by a line to be drawn along the middle of said river, including all its islands, to the thirty second degree of latitude — thence due north to the Northernmost part of the thirty third degree of north latitude — thence along the said parallel of latitude to the river Mississippi — thence down the said river to the river Iberville, and from thence along the middle of the said river and lakes Maurepas *Page 276 and Pontchartrain to the Gulf of Mexico — thence bounded by thesaid Gulf to the place of beginning, including all Islands withinthree leagues of the coast." (Italics ours.)
In U.S. Statute, Public Act of Congress, Feb. 20, 1811, 2 Stat. 641, admitting Louisiana to statehood in the Union, the same description appears, and it will be noted that the southern boundary of the State was fixed as the Gulf of Mexico and the islands within three leagues of the coast.
In 1811, Attakapas County was divided into St. Mary and St. Martin Parishes by Act No. 24. The upper part of this territory constituted St. Martin Parish and the lower part, St. Mary Parish. The Act of March 20, 1813, described the boundary of St. Mary Parish, as follows:
"Sec. 1. Be it enacted by the Senate, House of Representatives of the State of Louisiana in General Assembly convened That a straight line to be run from the westwardly corner of the upper line of the plantation of Francis Boutte where he now lives, to the head of the canal, leading to the Petite Anse Island, thence down the canal to the Petite Anse Bayou and down the same to the bay commonly called the Vermillion Bay; thence southeasterly with the bay and the line of the State, to the entrance into the Bayou Teche, thence up the Bay of the same to include all the settlements on the Bayou that intersect with the bay on the east side what is commonly called Berwick's Bay and not included in either of the Parishes of the Lafourche, then up the middle of the Grand Lake to the place where a line running east from the aforesaid Francis Boutte's *Page 277 plantation shall strike the said Lake, shall belong to the Parish of St. Mary."
The General Assembly of the State of Louisiana, by Act 208 of 1868, created Iberia Parish out of a portion of St. Martin and a portion of St. Mary Parishes and the coast of the Gulf of Mexico formed the southern boundary line of the new parish. The southern limits of the Parishes of Terrebonne, created by Act of 1822 shown on page 74 thereof, Vermillion, created by Act 81 of 1844, and Cameron, created by Act 102 of 1870, were fixed in the descriptions thereof as the shores of the Gulf of Mexico.
The only statement in the record with reference to the place where the alleged offense took place reads as follows:
"It is further agreed that these defendants in the above named and numbered boats proceeded down the Atchafalaya River and when reaching the bay and gulf were seen by witnesses who are present, and who will testify to the fact that they were trawling for shrimp in five (5) or six (6) fathoms of water from the position of the waters directly west of the Atchafalaya River between that point and Marsh Island, the distance from the shore line of the Parish of St. Mary, due South to the eastern end of the Marsh line being estimated at twenty-five (25) miles." (Italics ours.)
There was introduced in evidence a map of the State of Louisiana showing the respective boundary lines of the above-named Parishes, the Atchafalaya River, the Atchafalaya Bay, the Gulf of Mexico, and Marsh Island. From this map, it clearly *Page 278 appears that the boundary lines of the respective parishes are irregular and that the shore line boundaries of Terrebonne, Iberia and St. Mary Parishes along the Gulf of Mexico are also irregular. The boundary line between Iberia and St. Mary Parish, as appears from the map, is curved around the east side of Marsh Island, which is in Iberia Parish.
The State contended, and this view was adopted by the trial judge, that under the provisions of Act 55 of 1938, the southern boundary of the State of Louisiana had been extended out into the Gulf of Mexico twenty-four marine miles, from the three mile limit, or twenty-seven miles from shore, and that the territorial limits of the parishes bordering on the shores of the Gulf of Mexico had likewise, by operation of this law, been so extended, and, as the offense had taken place about twenty-five miles from the shore, the venue of the crime was in the Parish of St. Mary and the court had territorial jurisdiction.
Section 1 of Act 55 of 1938 provides that "the gulfward boundary of the State of Louisiana, is hereby fixed and declared to be a line located in the Gulf of Mexico parallel to the three-mile limit as determined according to said ancient principles of international law, which gulfward boundary is located twenty-four marine miles further out in the Gulf of Mexico than the said three-mile limit."
In Section 3 of the Act it is stated that the State of Louisiana owns all of the waters of the Gulf of Mexico and its arms, either at low or high tide "* * * within *Page 279 the boundaries of Louisiana, as herein fixed."
A reading of the provisions of Act 55 of 1938 reveals that nothing is said in the statute about extending the boundaries of any of the parishes bordering on the Gulf of Mexico or conferring jurisdiction upon the respective courts of the districts within which those parishes are located. Counsel for the defendants challenge the constitutionality of Act 55 of 1938, if it is interpreted as the State contends, because it would be enlarging the territorial jurisdiction of the district courts without an amendment to the Constitution.
Assuming that the statute is constitutional and that it impliedly extends the boundaries of those parishes bordering on the Gulf of Mexico the additional twenty-four marine miles into the Gulf, a view most favorable to the State, but without deciding either of those issues, it appears to us that the State is confronted with an insuperable barrier because neither from the record nor from the law can the location of the alleged offense be fixed with any certainty as coming within the territorial limits of the Parish of St. Mary. To begin with, the record shows that the distance the defendants were fishing from the shore line was merely "estimated" at twenty-five miles. This in itself leaves the exact place where the alleged offense happened doubtful. It might well be that the parties were more than twenty-seven miles from the shore. But, even if they were within the twenty-seven mile limit, when the court would attempt, without legislative guide and without surveys, to extend *Page 280 the parish lines separating the respective parishes bordering on the Gulf of Mexico, it would be confronted with a most confusing, if not inexplicable, problem. The shore line of the Gulf of Mexico forming the border of the parishes located along its shores, and particularly Terrebonne, Iberia and St. Mary Parishes, is very irregular. The border line between the two latter parishes is also irregular. The question thus arises — just how and where would you extend the boundary lines of these parishes into the Gulf of Mexico. Would the lines be merely continued out into the Gulf in the direction in which they were last pointed? Would they be extended on right angles to the shore, if it were possible to strike a line with the shore so as to make such an extension of the boundary line? Just where these extended boundary lines would lead to or converge, from the information in this record and the provisions of the statute (Act 55 of 1938), is utterly impossible to determine. Thus, we could not say with the slightest confidence that the violation of the law with which the defendants were charged occurred within the territorial limits of the Parish of St. Mary. As it appears from the face of the record that the venue of this alleged violation of the law was not in the Parish of St. Mary, the district court was without territorial jurisdiction to entertain and decide the case.
For the reasons assigned, it is ordered, adjudged and decreed that the plea to the territorial jurisdiction of the court is sustained; and the defendants are discharged. The right to petition the court for a rehearing *Page 281 is reserved to the State of Louisiana.
O'NIELL, C.J., dissents from the ruling on the question of venue and adheres to his original opinion that the penal clauses in the statute are unconstitutional, and hands down reasons.