In Tarquino's Case the accused was charged with violating an ordinance of the city of New Orleans, the penal provision of which reads as follows:
"That whoever shall violate the provisions of this ordinance shall, upon conviction before the recorder within whose jurisdiction the offense is committed, be condemned by said recorder to pay a fine not to exceed twenty-five ($25.00) dollars, or imprisonment in the parish prison for a term not to exceed thirty days, or both, or imprisonment in said parish prison for a termnot to exceed thirty (30) days in default of thepayment of said fine; provided that the fine shall notexceed twenty-five ($25.00) dollars for each offensenor the imprisonment more than thirty (30) days."
The sentence imposed was to pay a fine of $25 and to serve 30 days in jail, and in default of paying the fine to 30 days additional imprisonment. This court simply held that the ordinance itself had in express terms, as indicated by the portions italicized above, limited the maximum period of imprisonment to 30 days.
In State v. Voss, 49 La. Ann. 444, 21 So. 596, 62 Am. St. Rep. 653, the ordinance under which Voss was prosecuted contained practically the identical provision quoted above in the Tarquino Case; but there the judge had imposed a sentence of $25 and 10 days' imprisonment, and in default of paying the fine 20 days more. It was held that the limits of the ordinance had not been exceeded. The defendant had attacked the said penal section, claiming that it was ultra vires and illegal, because it permitted a greater imprisonment than 30 days for violating an ordinance of the city of New Orleans, and which was the limit fixed by the statute of the Legislature; and the court quotes the very language italicized above as fixing this limitation by the ordinance itself in conformity with the act.
And in State ex rel. Daubert v. Arnauld, the *Page 229 recorder had imposed a fine of $25 and 5 days in jail, with additional jail sentence of 25 days in default of paying the fine. The court held, as in Tarquino's Case, the maximum imprisonment could not exceed 30 days, because the statute (143 of 1898) authorizing the city council to pass penal ordinances permitted punishment "by fine and imprisonment, or both, or by imprisonment in default of the payment of the fine," but in no case is the fine to exceed $25 and the imprisonment, all told, to exceed 30 days.
It will be noted that in all three cases both the statute in its limitation, and the ordinances, make specific provision for the failure to pay the fine, but expressly limit the imprisonment under all circumstances to 30 days.
In the case now before this court, involving the interpretation of section 3 of Act No. 39 of 1921, no such alternative to enforce payment of the fine is found in the statute. Nor is there any such express limitation as appears in the ordinances and statutes considered in the cases just above referred to. Hence we think the lower court was correct in resorting to Rev. St. 980, in imposing an alternative jail sentence for failure to pay the fine.
For the reasons assigned, our former decree is set aside, and the conviction and sentence appealed from are affirmed.