The opinion of the court was delivered by
White, J.On the 16th of December, 1879, the relator, by affidavit, was charged with selling meat outside of'the public market in violation of the ordinances of Morgan City. He was tried by the mayor and sentenced on the 16th of December to pay a fine of five dollars, or in default, to five days imprisonment in the city jail. A suspensive appeal *82having been refused, the proceeding we are now considering was taken to compel its allowance. The mayor in response to the rule nisi says, that the appeal was refused because the constitutionality of the ordinance was not brought in question, since the defendant only urged, not that the ordinance violated the then existing constitution, but the proposed constitution of 1879, not at the time of the charge, trial, sentence, or refusal of the appeal, officially promulgated as having been adopted. The answer is borne out by the record, which is made a part of the return, and in fact is admitted to be correct by the relator’s petition. Under this state of things, it is manifest that we cannot make the rules absolute, for although our jurisdiction extends to reviewing the constitutionality of a fine imposed by a municipal corporation, no such question is presented, as the only complaint of the relator is that the fine violated not the constitution, but one proposed for adoption.
The rules are discharged at relator’s cost.
Rehearing refused.