(dissenting).
One of the sacred rights guaranteed to every individual under the Bill of Rights adopted as a part of our Louisiana constitution of 1921 is that the trial of all criminal prosecutions “shall take place in the parish in which the offense was committed, unless the venue be changed.” Those selected by the people of this state to draft the constitution by which they (the people) wished to be governed thus, in clear and unequivocal language, fixed the territorial limits of the courts having jurisdiction in criminal matters. Consequently, no one can be legally charged with the commission of any offense except before the court within the territorial jurisdiction where the crime was committed. Nor can one accused of an offense be brought to trial in any parish of this state other than the one in which the offense was committed, unless the venue had been changed in the manner provided by law. Hence, a court of any parish other than the one in which an offense has been committed (except where a change of venue has been secured) lacks jurisdiction to try such an offense, and a conviction in such a case would be an absolute nullity and could not support a plea of former jeopardy. See, State v. Montgomery, 115 La. 155, 38 So. 949; State v. Moore, 140 La. 281, 72 So. 965; State v. Nugent, 191 La. 198, 184 So. 746; and State v. Smith, 194 La. 1015, 195 So. 523.
A mere reading of the pertinent provision of the only portion of the “Public Payroll Fraud” statute applicable here, as re-*360fleeted by Paragraph No. 2 of R.S. 14:1381 will disclose that the gravamen of the offense here charged is the inclusion on an employment list of the name of a person or persons who are known by the public official responsible for such inclusion to be rendering no service, or else that such services are grossly inadequate, for the compensation reflected on the list as being paid. It necessarily follows, therefore, that in order to determine whether the court in and for the Parish of East Baton Rouge has jurisdiction of the offense allegedly committed by the defendant in this case, i. e., violation of Paragraph (2) of R.S. 14:138, it must be ascertained whether the facts disclose the crime, if committed, was committed in that parish. State v. Montgomery, 115 La. 155, 38 So. 949; State v. Kinchen, 126 La. 39, 52 So. 185; State v. Malone, 133 La. 56, 62 So. 350; State v. Moore, 140 La. 281, 72 So. 965; State v. Hogan, 157 La. 287, 102 So. 403; State v. Nugent, 191 La. 198, 184 So. 746; State v. Smith, 194 La. 1015, 195 So. 523; State v. Briwa, 198 La. 970, 5 So.2d 304; State v. Ellerbe, 217 La. 639, 47 So.2d 30; State v. International Paper Co., 201 La. 870, 10 So.2d 685; and State v. Bloomensteil, 235 La. 860, 106 So.2d 288.
According to the stipulation of facts, the defendant is the State Fire Marshal who, in the performance of his duties, is required to reside in the Parish of Orleans, where his office is located and where all of the records of his office are kept, including the list (or payroll) of persons employed and paid through his office, and on which list was included the name of Gibson O. Kimberlin, who, it is asserted in the indictment, received payment from the State Fire Marshal without performing any service therefor, or services grossly inadequate for such payment or compensation; that the funds out of which the State Fire Marshal caused this employee to be paid were deposited in banks outside of the Parish of East Baton Rouge; that all checks of the State Fire Marshal in connection with the maintenance and operation of his office, including those issued to Kimberlin as a purported employee of that office, were drazvn in the office of the State Fire Marshal in Orleans Parish, signed by the State Fire Marshal in Orleans Parish, and issued to Kimberlin out of the office of the State Fire Marshal in Orleans Parish; and, to quote this stipulation as set out in the majority opinion, Kimberlin "was paid by the issuance of checks by the Fire Marshal payable to the order of Gibson O. Kimberlin.” (The emphasis has been supplied by me.)
It is obvious from the foregoing that the offense in the instant case, if committed, was committed wholly in the Parish of Orleans and not in the Parish of East Baton Rouge. A mere reference to the “Public Payroll Fraud” statute as quoted in full in Fooinote No. 1 will disclose that two separate sets of acts are there sought to be denounced as crimes, and two separate and distinct individuals are sought to be held accountable for the crimes thereunder, the acts sought to be made a crime in Paragraph (1) being those of an individual who, as a purported employee, knowingly receives compensation for which no, or gross*361ly inadequate, services are performed, through the device of permitting his name to be carried on a public payroll; while the acts sought to be made a crime in Paragraph (2) are those of a public official in including an individual’s name on a public payroll and paying compensation to that person for services known to be inadequate and not actually performed.
This was readily recognized by the district attorney in and for the Parish of East Baton Rouge, for he, acting as the legal adviser of the grand jury, did not cause Kim-berlin and Coon to be charged jointly in one indictment with the violation of this statute, but, instead, in two separate and distinct indictments, one of which charged Kimberlin, as an employee, had violated the provisions of Paragraph (1) of R.S. 14:138, the indictment tracking these provisions; the other charging that Coon, as a public official, had violated the provisions of Paragraph (2), the indictment tracking these provisions.
Conceding, however, that counsel for the state is correct in his contention that R.S. 15:13 is constitutional (with which contention I do not agree, as will hereinafter be shown), the manner in which the State Fire Marshal secured the funds for the operation of his office from the State Treasurer cannot, by any stretch of the imagination, be said to be an element of the crime with which Coon, as State Fire Marshal, is here charged, as is being held by the majority, a fact that is reflected by the clear provisions of Paragraph (2) of R.S. 14:138.
It is true, as admitted in the stipulation of facts, that the State Fire Marshal secured funds for the operation of his office by drawing, in Orleans Parish, warrants that were then deposited to his account in banks outside the Parish of East Baton Rouge, and that these warrants were honored out of funds'on deposit to the account of the State Treasurer in the Parish of East Baton Rouge. But Kimberlin was not paid when the warrants drawn by Coon were honored in Baton Rouge for the very simple reason that once they were honored Coon, as State Fire Marshal, was being paid by the State Treasurer, amounts appropriated■ by the legislature for the maintenance of his office, and the funds so obtained were then placed in other accounts in the name of Coon as State Fire Marshal in banks outside East Baton Rouge Parish. Kimberlin was paid from these funds deposited in the name of the State Fire Marshal outside East Baton Rouge Parish after his name had been included on the payrolls made up in the office of the State Fire Marshal in Orleans, and that were kept in Orleans Parish.
The fact that the checks payable to Kim-berlin — drawn in and issued from the office in Orleans Parish, and honored by banks outside of East Baton Rouge Parish — were “received” by him in the Parish of East Baton Rouge, and there used for his own purposes, are not elements of the crime with which Coon has been charged, but, rather, of the crime with which Kimberlin has been charged under the provisions of Paragraph (1) of R.S. 14:138.
In my opinion, however, Act No. 2 of 1928, as amended by Act No. 147 of 1942 (now R.S. 15:13) to include the provision “that where the several acts constituting a crime shall have been committed in more than one parish, the offender may be tried in any parish where a substantial element of the crime has been committed,” is clearly unconstitutional. It is an attempt by the legislature to extend the jurisdiction in which the trials may be held beyond the limits fixed by the Constitution in Section 9 of Article I.
An interesting and elaborate dissertation on this subject is to be found in the decision of this court in State v. Moore, supra, written in 1916 by the late Chief Justice Charles O’Niell while still only an associate on this bench. There he pointed out that prior to the adoption of the Constitution of 1864 the several constitutions of our state, beginning with that of 1812, simply required that an accused “have a speedy public trial by an impartial jury of the vicinage,” with the result that when the legislature in 1855 adopted its Act No. 121 providing, in Section 12, *362“[That] When any crime or misdemeanor shall be committed on the boundary of two or more parishes, or within one hundred yards thereof, or within one hundred yards of any other boundary, or shall be begun in one parish and completed in another, it may be dealt with, inquired of, tried, determined and punished in either of the parishes in the same manner as if it had been actually and wholly committed therein,” this was permissible and within the constitutional limitation, since the trial was one by an impartial jury "of the vicinage.” However, after the Constitution of 1864 was adopted, this provision was changed to read as follows in Article 105: “The accused shall have a speedy public trial by an impartial jury of the parish in which the offence shall have been committed,” rather than “of the vicinage.” (The emphasis has been supplied by me.)
In view of this change, the author of the opinion in the Moore case held emphatically that “Article 105 of the Constitution of 1864 * * * repealed section 12 of Act No. 121 of 1855. The provision quoted from article 105 of the Constitution of 1864 was embodied in article 6 of the Bill of Rights, in the Constitution of 1868, in precisely the same language but with this addition, ‘unless the venue be changed.’ N otwithstcmding the provisions of article 6 of the Bill of Rights in the Constitution of 1868, and in direct conflict therewith, the Legislature re-enacted section 12 of Act No. 121 of 1855 as Section 988 of the Revised Statutes, approved March 14, 1870. The law enacted as section 988 of the Revised Statutes, however, was again repealed by this provision in article 7 of the Bill of Rights of the Constitution of 1879, vis.: ‘That the accused in every instance shall be tried in the parish wherein the offense shall have been committed, except in cases of change of venue.’ The same provision was made in article 9 of the Bill of Rights in the Constitution of 1898, and is retained in the Constitution of 1913, in this language, viz.: ‘That all trials shall take place in the parish in which the offense was committed, unless the venue be changed.’ ” (The emphasis has been supplied by me.)
In thus holding, the court followed the decision of State v. Montgomery, 115 La. 155, 38 So. 949, decided in 1905, and that decision followed expressly, by adopting unanimously the dissenting opinion of Mr. Justice Blanchard in State v. Harris, 107 La. 325, 31 So. 782, decided in 1902 — some 60 years ago — in which a clear and excellent analysis of these provisions, their application, extent, and limitation is to be found. Significantly, the majority opinion in the Harris case had held that Section 988 of the Revised Statutes of 1870 was not repealed but only modified by Article 9 of the Constitution of 1898, whereas the dissent (adopted in full by this court in the Montgomery case and followed in the Moore case) pointed out in no uncertain terms that this constitutional provision rendered Section 988 invalid and a conviction in a parish other them the one where the crime was committed was absolutely null and void.
The majority opinion, in reliance on what is obviously dictum, pure and simple, in the opinion written by Chief Justice O’Niell in State v. Hart, 195 La. 184, 196 So. 62,2 some 24 years after his decision in the Moore case, and without reference thereto, disregards not only these basic principles guaranteed to the individual in our Bill of Rights, but also these solemn pronouncements with respect to them and their effect, when it declares the Montgomery and Moore cases are not controlling here. Furthermore, in *363attempting to differentiate these cases, the majority overlooks another very important feature, i. e., that the court, in making the above quoted pronouncements, was disposing of live and well-pleaded issues in the case. Contrary to distinguishing them, the majority has, in effect, overruled them after these many years, and without any sound reason therefor under the admitted facts of this case.
In reaching its conclusion, the majority opinion also obviously overlooks the fact that the drafters of the 1921 by including the same provision that has been in all constitutions since the one adopted in 1868 — ■ “that all trials shall take place in the parish in which the offense was committed, unless the venue be changed” — did add as a further provision language tracking a portion of Section 988 of the Revised Statutes of 1870 (showing a thorough familiarity with this statute and its provisions) by authorizing the legislature to “provide for the venue and prosecution of offenses committed within one hundred feet of the boundary line of a parish,” 3 yet excluded therefrom the remaining provisions in Section 12 of Act 121 of 1855 and Section 988 of the Revised Statutes of 1870.4 By thus deliberately failing to grant to the legislature the authority to extend the provisions of Section 9 of Article I on this subject still further, as is being asserted in the majority opinion with respect to “substantial element” of a crime, the drafters of the 1921 Constitution, and the people in adopting it, not only placed a stamp of approval and affirmation of the decisions in the Montgomery and Moore cases, but again repudiated the provisions of the 1855 and 1870 statutes in conflict therewith, as well as those of any other statute or statutes on the subject that go beyond the specific power and authority granted to the legislature in Section 9 of Article I.
I must, therefore, respectfully dissent.
. The pertinent portions of this statute are as follows: “Public pay roll fraud is committed when: (1) Any person shall knowingly receive any payment or compensation, or knowingly permit his name to be carried on any employment list or pay roll for any payment or compensation from the state, for services not actually rendered by himself, or for services grossly inadequate for the payment or compensation received or to be received according to such employment list or pay roll; (2) Any public officer or public employee shall carry, cause to be carried, or permit to be carried, directly or indirectly, upon the employment list or pay roll of his office, the name of any person as employee, or shall pay any employee, with knowledge that such employee is receiving payment or compensation for services not actually rendered by said employee or for services grossly inadequate for such payment or compensation.” (The emphasis has been supplied by me.)
. « * * * we are not aware of any constitutional objection to the provision in Section 9S8 of the Revised Statutes, with reference to a crime that was begun in one parish and completed in another. The only question, however, that toe are ealled wpon now to decide is whether the district court in Lincoln parish has jurisdiction over this case; and, for the reasons which we have stated (facts), our conclusion is that the district court in that parish has jurisdiction.” (The emphasis and word within brackets has been supplied by me.)
. The legislature has exercised the authority thus granted by adopting R.S. 15:15, which provides in effect that any offense committed on the boundary line of two parishes, or within 100 feet of the dividing line, may be prosecuted in either parish.
. “[That] When any crime or misdemeanor shall be committed on the boundary of two or more parishes, or within one hundred yards thereof, or within one hundred yards of any other boundary, or shall he begun in one parish and completed in another, it may be dealt with, inquired of, tried, determined and punished in either of the parishes in the same manner as if it had been actually and wholly committed therein.” It is obvious, therefore, that Chief Justice in including in his decision in State v. Hart, 195 La. 184, 196 So. 62, the dictum quoted in Footnote No. 2 not only overlooked the fact he himself had specifically held these provisions unconstitutional, and overruled, but gave no consideration whatever to the fact that the drafters of the Constitution of 1921, although fully cognizant of this underscored portion of these statutes, had refused deliberately to incorporate it in the grant to the legislature of authority with respect to what statutes it might enact under the power conferred in Section 9 of Article I. (The emphasis has been supplied by me.)