[1 -3] The defendant was convicted of a misdemeanor, and sentenced to pay a fine of $301 and costs, or be imprisoned 90 days in the parish jail, and he has appealed from the conviction and sentence.
Under the doctrine announced in State v. Hamilton, 128 La. 91, 54 South. 482, and affirmed in State v. Mitchell, 137 La. 1098, 69 South. 851, this court has no jurisdiction of the present appeal. The offense of which the appellant was convicted is not punishable by death or imprisonment at hard labor.
Article 85 of the Constitution of this state provides that the appellate jurisdiction of this court extends to criminal cases on questions of law alone whenever the punishment of death or imprisonment at hard labor may be inflicted or a fine exceeding $300 or imprisonment exceeding six months is actually imposed.
Construing the foregoing constitutional provisions in each of the two cases referred to above, where the sentence imposed for the commission of a misdemeanor was that the defendant pay a fine of $300 and costs and be imprisoned six months in the parish jail, or, in default of his paying the fine and costs, that he serve six months additional imprisonment in the parish jail, it was held by a majority of the members of this court that the imprisonment in excess of the term of six months was only an alternative sentence, not “actually imposed.” On the same principle, a majority of the members of the court now hold that the fine of $301 in this case was not actually imposed, because the de*1074fendant was given the alternative sentence of imprisonment for only 90 days.
This case is an important one, involving questions of constitutionality of our oyster conservation laws. But we have no authority for rendering an advisory opinion in a case in which our judgment or decree would be null for want of jurisdiction.
The writer of this opinion adheres to the views expressed in his dissenting opinion in State v. Mitchell, published in 137 La. 1098, 69 South. 852, but is alone in that opinion.
For the reasons assigned, the appeal is dismissed.