third on March 7, 1923. In the remaining | eral Amendment does not operate, even with cases no appeals were taken or could have respect to the federal government, so as to been taken, as no sentences were imposed. prohibit the conviction of a person ten times Hence the bills of information filed in them for violating a statute that number of times, are not in the record, and, therefore, we are even though the offenses may have been his unable to say when the offenses charged in first against the statute; and even though them are alleged to have been committed. he should be tried on all the charges on the The first bill of exceptions reserved by de- same day. And this, in our opinion, is likefendants is one to the overruling of a mo-wise true as to section 12 of article 1 of the tion for a new trial. The first ground al-state Constitution, with respect to the state leged for the granting of the new trial is that government. Both amendments affect mereno evidence was introduced to warrant a ly the sentence that may be imposed for conviction in these cases. The second crime. ground alleged, as it appears in the tran- [4, 5] In passing upon the foregoing bill script, is stated confusedly-so much so that of exceptions, we have referred necessarily it is impossible to grasp its meaning. The to the conviction in all of the ten cases, third and last ground alleged is: As this though, as a matter of fact, only three of is the first time that defendants have been them are before us on appeal. As we have charged with unlawfully manufacturing in- observed, sentence was pronounced in only toxicating liquor, to convict them on ten three of the cases; and hence only those charges is violative of the Constitution of three have been appealed. The rest could the United States, and of section 12 of ar-not have been appealed, as sentence had not ticle 1 of the Constitution of this state.

been pronounced in them. The fact that the judge deferred passing sentence in those cases, over the protest of the defendants, forms the basis of the next bill of exceptions.

The contention of defendants is that the trial judge has no right to permit the convictions in these cases to hang over them. Defendants desire also, no doubt, to bring to the attention of this court the action of the lower court in these cases for whatever effect it may have on a constitutional question to be hereinafter considered.

[1-3] Defendants asked in their motion for a new trial that the evidence to be offered under it be reduced to writing. The trial judge says, in giving his reasons for overruling the first ground of the motion, that no evidence was offered on the trial of the motion, and that the testimony offered on the trial of the cases, themselves, was conclusive of the guilt of the defendants. The bill reserved, therefore, on the first ground urged in the motion, presents nothing for review. This is likewise true with respect to the second ground urged therein for the reason Defendants probably have the right to reindicated in stating the grounds set forth in quire the lower court to pass sentence in the motion. With reference to the third the remaining seven cases, should they desire ground urged therein, defendants do not alto take such action, to the end that they lege in what respect it is violative of the Constitution of the United States to convict may serve the sentences to be pronounced in them on 10 charges for violating the liquor them, or to the end that, if the sentences laws, when the charges on which the convic-be sufficient to justify appeals, they may aptions were had are the first of that nature peal in each of them, should they deem that course advisable. However, as these cases ever brought against them. However, as in the same connection, defendants also al-are before us only incidentally, it is clear lege that to convict them on that number of that we can render no order on this appeal charges is violative also of section 12, art. directing the lower court to pronounce the 1, of the Constitution of this state, which sentences that have been deferred. It is section prohibits, in part, the imposition of equally clear that merely because the trial excessive fines and the infliction of cruel and court has not pronounced sentence in them unusual punishment, we assume that defend- does not entitle defendants to have the senants, in referring to the convictions as being tences set aside in the three cases in which violative of the Constitution of the United they were pronounced. If defendants desire States, have reference to Amendment 8 there- that sentence be pronounced in the remainof, which, in part, also prohibits the imposi-ing cases, the law gives them an adequate tion of excessive fines and the infliction of remedy, should the district attorney, with cruel and unusual punishment. However, the leave of the court, not enter a nolle prothe Eighth Amendment to the federal Con- sequi in them.

stitution is addressed to the federal govern- Defendants, in each of the three cases apment only, and does not operate as a prohi-pealed, were sentenced to pay a fine of $500, bition against the states. Ex parte Wat- to serve 60 days in jail, and, in default of kins, 7 Pet. (32 U. S.) 573, 8 L. Ed. 786; Ohio payment of the fine, to 12 months additional v. Dollison, 194 U. S. 447, 24 Sup. Ct. 703, 48 in jail; the sentences not to run concurrentL. Ed. 1062; Pervear v. Massachusetts, 5y. The defendants contend that these senWall. (72 U. S.) 475, 18 L. Ed. 608. More- tences are illegal, because not authorized by over, in our view, it is obvious that the fed- law, and that they violate section 12 of ar

(100 So.)

[6] Section 3 of Act 39 of 1921 provides that a person, found guilty of unlawfully manufacturing intoxicating liquor for sale or for beverage purposes, shall, for the first offense, be fined not exceeding $500 and shall be imprisoned for not less than 10 nor more than 60 days. The section also provides a heavier penalty for what it terms the second or subsequent offense, but that part of the section evidently has reference to an offense committed after conviction. Section 980 of the Revised Statutes of 1870 provides that every person, sentenced to pay a fine, shall, in default of the payment or of the recovery of the fine, be imprisoned for a period not exceeding one year.

[7] The fine and imprisonment, provided by section 3 of the act of 1921, is the punishment authorized to be inflicted for unlawfully manufacturing the liquor. The imprisonment authorized by section 980 of the Revised Statutes is to enforce payment of a fine imposed, and not to punish one directly for the commission of an offense.

ticle 1 of the Constitution of this state, be- manufacturing intoxicating liquor unlawcause the fines imposed are excessive, and fully shall constitute an offense, so that if a because the punishment inflicted is cruel and person should manufacture intoxicating unusual. liquor upon one occasion and then upon another, the manufacturing of it on each occasion would be a distinct offense. Such appears to have been the case here, in so far as the record discloses, except that the liquor was manufactured on more than two distinct occasions. The act also contemplates that the fine and imprisonment authorized by it may be imposed for each offense, and that the imprisonment authorized by section 980 of the Revised Statutes, or so much thereof as the judge, in the exercise of his discretion, may deem necessary, may be imposed to enforce payment of each one of the fines. Hence, pretermitting, for the moment, the question concerning the constitutionality of the sentences pronounced, we are of the opinion that those sentences are in accord with the Act of 1921 and the section of the Revised Statutes under which they were imposed. But are the sentences violative of the Constitution? We are clearly of the opinion that a sentence of $500 and 60 days' imprisonment, and, in default of payment of the fine, of one year additional in jail, for one offense of unlawfully manufacturing intoxicating liquor, is not unconstitutional. The fine is not excessive, nor is the punishment cruel and unusual. Cardillo v. People, 26 Colo. 355, 58 Pac. 678. But does such a sentence become unconstitutional, when imposed three times for as many separate and distinct offenses, though for offenses of the same description? The sentences, by their cumulation, then become severe, it is true, but a person, because of separate violations of the same provision of law, cannot take advantage of such repeated violations to demand lighter sentences in each case than the facts otherwise would seem to justify, nor can he take advantage of such repeated violations to demand that sentence be imposed for each violation in such proportion that the sum total of the sentences will not exceed the sentence constitutionally provided by the lawmaker for one offense. It is true that it seems to us that the trial judge might have shown more mercy in these cases than he has apparently shown, but he did not take that view of the matter, and evidently considered that he had shown sufficient mercy by sentencing the defendants in only three out of ten cases. As it is, we are not of the opinion that the sentences imposed are unconstitutional. See Badders v. United States, 240 U. S. 391, 36 Sup. Ct. 367, 60 L. Ed. 706; Brinkley v. State, 125 Tenn. 371, 143 S. W. 1120.

A judge, in sentencing one, convicted under Act 39 of 1921, to pay a fine, may, in order to enforce its payment, go beyond the act, and impose the penalty provided by section 980 of the Revised Statutes, or so much thereof, in the exercise of his discretion, as he may deem proper to accomplish that end. State v. McGuire, 152 La. 954, 94 South. 896; State v. Hebert, 101 South. No. 26165, not yet (officially) reported; State v. Sharp (La.) 100 South, 454, this day decided.

A judge, therefore, in passing sentence, based upon a conviction for the unlawful manufacture of intoxicating liquor, under Act 39 of 1921, may sentence the person convicted, should he deem that the facts justify it, to pay a fine of $500 and to be imprisoned in the parish jail for 60 days, and in default of the payment of the fine to be imprisoned for one year longer.

[8, 9] The judge, however, as we have seen, imposed the foregoing sentence in each of the three cases appealed. In each case a distinct offense is charged, though all three offenses are of the same kind, the dates only of their commission being different. It is contended that sentences thus imposed, and of the severity of those imposed in this instance, for unlawfully manufacturing intoxicating liquor, are not only unauthorized by law, but are violative of section 12, art. 1, of the Constitution of this state, prohibiting, among other things, as we have seen, the imposition of excessive fines and the infliction of cruel and unusual punishment.

Section 3 of the Act of 1921 contemplates that each distinct and completed act of

For the reasons assigned, the convictions and sentences appealed from are affirmed.

Rehearing refused by the WHOLE COURT.

(156 La.)

No. 26147.

7. Municipal corporations 271-Authority to provide water supply.

BATON ROUGE WATERWORKS CO. v. water supply includes power to do and perform

LOUISIANA PUBLIC SERVICE

COMMISSION.

(Supreme Court of Louisiana. March 8, 1924.
Rehearing Denied by Whole Court
June 7, 1924.)

(Syllabus by Editorial Staff.)

Authority to a city to provide an adequate everything incident thereto and necessary to attain that object.

8. Waters and water courses 203 (6)—Municipality authorized to fix rates by compulsion.

Power granted to city to fix water rates without reservation or restriction carries with 7-Rate-it right to fix rates by compulsion as well as by contract.

Overton and Land, JJ., dissenting.

Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; W. W. Bailey, Judge.

1. Public service commissions making power within police power of state. Rate-making power, whether exercised by agreement or by fiat of law, is within police power of state as one of state's highest attributes of sovereignty, and this power can never be abridged nor irrevocably surrendered where there is a constitutional inhibition. 2. Constitutional law 63(1)-Public service Action by the Baton Rouge Waterworks commissions 7-State may delegate to Company against the Louisiana Public Servmunicipal corporation or commission rate-ice Commission. Judgment for defendant, making powers. and plaintiff appeals. Reversed and remanded, with directions.

A state may either expressly or by reasonable implication delegate to a municipal corporation, or to some subordinate board or commission, lawful exercise of police power for rate-making purposes within boundaries of such municipality, board, or commission. 3. Public service commissions

7-Power to make rates to govern local utilities placed by law under control of municipality, excluded from Public Service Commission.

Laycock, Borron & Laycock and Taylor &
Porter, all of Baton Rouge, and Monroe &
Lemann, of New Orleans, for appellant.

Huey P. Long, of Shreveport, and W. M.
Barrow, of Baton Rouge, for appellee.
By the WHOLE COURT.

THOMPSON. J. This is a controversy between two state agencies-one statewide, the other purely local-each functioning under delegated powers. The dispute is over the right to govern and control a local public service utility and to establish and enforce rates for the services rendered by such utility.

Shorn of all immaterial and lateral considerations, the primary question presented is whether the city of Baton Rouge, under its legislative charter, was vested with the authority at the time of the adoption of the Constitution of 1921 to supervise, regulate and control the waterworks system owned and operated by the Baton Rouge Waterworks company, and to establish rates and charges for water supplied and sold to consumers within the city by the said company. If the city had such power, it is conceded that the authority still exists, and was not withdrawn nor vested in the Public Service Commission by the Constitution.

More than 30 years ago the city of Baton Rouge entered into a commutative contract with the assignors of the present waterworks company by which a water supply for said city and its inhabitants was secured. The time limit, as provided in the contract, was 30 years from its date. The city expressly reserved the privilege of purchasing the waterworks at any time after 20 years from November 9, 1887.

(100 So.)

scribing all reasonable rules, rates, and regulations which may appear proper and necessary in connection with the furnishing and supplying of water to any and all consumers.

About 1910 a litigation arose between the city and the waterworks company, in which the city sought to rescind the contract, but a compromise was effected, the terms of which were merged into a judgment of the federal The company appeared and excepted to court. In this compromise agreement, as the jurisdiction and power of the Commission well as in the original contract, the water to interfere with said company in its conrates suggested and fixed by the city of Baton tractual relations with the city of Baton Rouge were accepted by the waterworks Rouge, and challenged the authority of said company. At the time of the compromise the Commission to supervise, regulate, and conright of the city to purchase the water plant trol said company, or fix the rates for water had accrued, but, the city being financially furnished the city and its inhabitants. The unable to purchase the same, and in con- exception was overruled, whereupon the pressideration of the large amount of capital re-ent proceeding was filed for an injunction quired to be expended by the water company against the Commission. On a rule nisi the to enlarge and extend the plant to meet the injunction was denied and the application necessities of the city and its inhabitants, was dismissed. The plaintiff brings this the term of the option to purchase was post- appeal. poned to a future date.

In consideration of the right granted the waterworks company to construct, maintain, and operate a waterworks system at certain rates fixed and agreed on, it was stipulated that the company should furnish free water up to. a maximum stated allowance during the existence of the contract, for each public school established or to be established, for each market house, for the city hall and jail, for four automatic floatvalve drinking fountains, for one Catholic orphan asylum, for one Protestant orphan asylum, and for street sprinkling.

We have stated the conditions of the contract somewhat in detail to show that there were mutual obligations and undertakings of no less vital importance and concern to the city and its inhabitants than the making of water rates.

In the judgment of the Circuit Court of the United States, it was declared that the contract entered into between the city and the waterworks company was a valid and binding contract to the extent and for the purposes set forth, and that the city of Baton Rouge had no right to annul the same. The terms of the contract and the water rates and charges as fixed therein appear to have been entirely satisfactory both to the city and to the company, and there is no present demand on the part of either the waterworks company, the city of Baton Rouge, or the state to have said contract annulled and rescinded, except in so far as the Public Service Commission may be said to act for the state in its asserted authority and jurisdiction to supervise and control the water company.

Opinion.

[1, 2] It is conceded on well-recognized authority that the rate-making power, whether exercised by agreement or by the fiat of law, is within the police power of the state as one of the state's highest attributes of sovereignty, and that this power can never be abridged nor irrevocably surrendered where there is, as in this state, constitutional inhibition. But equally well settled is the doctrine that the sovereign may, either expressly or by reasonable implication, delegate to a municipal corporation or to some subordinate board or commission, the lawful exercise of the police power within the boundaries of such municipality, board, or commission.

Section 4, art. 6, of the Constitution of 1921, provides that the Public Service Commission shall have and exercise all necessary power and authority to supervise, govern, regulate, and control all waterworks and other public utilities, and to fix reasonable and just rates, fares, tolls, or charges for the services rendered by such public utilities, except as otherwise provided in the Constitution. The proviso or exception is to be found in section 7 of the same article 6; and it declares that nothing in this article shall affect the powers of supervision, regulation, and control over any waterworks or other local public utility now vested in any town, city, or parish government, unless and until, at an election to be held, a majority of the qualified electors in such town, city, or parish voting thereon shall vote to surrender such powers.

[3] It is to be observed that the last above mentioned section makes no reference to the In April of the present year the Public power to make rates and charges. It is obService Commission, assuming authority un- vious, however, from the language used when der the Constitution of 1921, on its own in- taken in connection with section 4, that it itiative, ordered the Baton Rouge Waterworks was the intention and purpose of the framCompany to show cause why the rates as ers of the Constitution to except and to exfixed by the contract between said company clude from the Public Service Commission and the city of Baton Rouge should not be the power to make rates to govern those lowered, and for the further purpose of local public service utilities which theretoaiding and assisting the Commission in pre- fore had been placed by law under the power,

supervision, and control of the town, city, with all the powers, rights, and immunities or parish government. incident to a municipal corporation and nec

In other words, it could not have been in-essary to the proper government of the same; tended to allow the municipalities to retain that the council shall have power to enact control, supervision, and regulation of their all laws and ordinances necessary for the public utilities, and to withhold from them general welfare of said corporation and the the power to make rates, and to place that inhabitants thereof; and to this end the authority in the Public Service Commission. council is specially empowered to pass ordiThis was the construction placed on the qual-nances to provide an adequate water supply; ifying section or proviso in the case of State to authorize the use of the streets for water v. City of New Orleans, 151 La. 24, 91 South. pipes and sewers and to regulate the same 537, wherein we said: and to exercise general police powers. 19 Ruling Case Law, p. 789, says: