(dissenting in part). Act 113 of 1896 cannot possibly apply to prosecutions in city courts for two very plain reasons:
(1) There were no city courts in existence in the state of Louisiana in the year 1896 when the act was adopted.
(2) At that date the district courts of the state were the only courts in which criminal cases were prosecuted. Article 121 of the Constitution of 1879 provides that—
“There shall be a clerk of the district court in each parish, the parish of Orleans excepted, who shall be ex officio clerk of the court of appeals.
“He shall be elected by the qualified electors of the parish every four years, and shall be ex officio parish recorder of conveyances, mortgages and other acts, and ¡notary public.”
The language of Act 113 of 1896, “the court shall at the time and without delay order the elerlc to take down the facts upon which the bill has been retained,” therefore clearly refers to district courts, and to district clerks elected for such courts under article. 121 of 1879, as there was no constitutional provision for clerks at that date for any other courts. In the year 1890 the police courts of the city of New Orleans, as at the present time, had no jurisdiction to try criminal cases, their jurisdiction being limited to the enforcement of municipal ordinances. Cfonst. 1879, art. 136; Const. 1921, § 94, art. 7.
At no time have the courts of justices of the peace been vested with jurisdiction to try criminal cases. If the mere fact that’ a city judge is his own clerk justifies the inclusion of city courts within the provisions of Act 113 of 1896 as to taking formal bills of exceptions in criminal eases, then, by the same process of reasoning, we must include within the act all mayors’ courts and recorders’ courts, because the mayor or the recorder may be his own clerk in the trial of city ordinances.
City courts were created by the Constitution of 1898 in lieu of courts of justices of the peace in cities with a certain population, and city courts are no more courts of record than the courts of justices of the peace, mayors, or recorders. Const. 1898, art. 96.
If these inferior tribunals, in which the proceedings in the trial of mere misdemeanors and municipal ordinances, have been simplified by prosecution on affidavit, are to be incumbered with the formality of criminal procedure in district courts, the delay in the trial of such cases and the extra cost to the taxpayer will, in my judgment, soon become intolerable.
The congestion already in the • courts of the state is to be deplored. It should not be increased by placing a strained construction upon Act 113 of 1896.
I therefore dissent as to this bill, but otherwise concur in the decree.
Rehearing refused by the WHOLE COURT.