State v. Rabalais

(concurring in the annulment of the conviction).

I concur in the decree rendered in this case, in so far as it annuls the conviction and sentence and orders the appellant discharged; but I dissent from the decree recalling the writs of certiorari and prohibition. It is said in the prevailing opinion that the matters whch were brought up for review by the writ of certiorari were covered by the appeal ; that it is a familiar rule that the supervisory powers of this court will not be exercised when the relator has a full and adequate remedy by appeal; and, accordingly, that the writs herein granted should be recalled. All of that appears to me to be a mistake. The only question that was brought up for review or consideration by the defendant’s appeal was the question of constitutionality or legality of the parochial ordinance under which the fine and penalty of imprisonment was imposed upon him. The purpose of the writs of certiorari and prohibition was to bring up the defendant’s other complaints, as to which he had no remedy by appeal. I. respectfully submit, therefore, that the writs were not issued improvidently. We had no right to assume, in advance of a hearing, that the ordinance was unconstitutional or illegal, and, therefore, that the writs of certiorari and prohibition would be unnecessary.