Town of Van Buren v. Wells

• Decision Date: 07 June 1890
• Citation: 14 S.W. 38
• Parties: TOWN OF VAN BUREN v. WELLS. SAME v. WRIGHT. CASSIDY v. CITY OF TEXARKANA.
• Court: Arkansas Supreme Court

Page 38

14 S.W. 38

TOWN OF VAN BUREN v. WELLS.

SAME v. WRIGHT.

CASSIDY v. CITY OF TEXARKANA.

Supreme Court of Arkansas.

June 7, 1890.

Appeals from circuit court, Crawford county; H. F. THOMASON, Judge.

Appeal from circuit court, Miller county; C. E. MITCHELL, Judge.

Nimrod Turman, for the Town of Van Buren. Scott & Jones, for appellant Cassidy. Appellee Wells, pro se.

BATTLE, J.

In the first case the facts are as follows: Wells was accused and convicted before a justice of the peace of Crawford county of carrying a pocket pistol concealed about his person within the corporate limits of the town of Van Buren, in said county and in this state. At the time this offense was committed, there was in full force and effect an ordinance of the town of Van Buren prohibiting the carrying of such pistols, and imposing a fine on every person violating the same. After conviction in the justice's court, he was accused before the mayor of the town of violating this ordinance by the same act of which he was convicted, and for such violation was arrested and carried before the mayor. In the mayor's court, he pleaded his former conviction, and was tried and convicted. He appealed to the circuit court, where his plea of former conviction was sustained, and he was discharged; and the plaintiff appealed to this court.

In the second case, Frank Wright was accused and convicted in the court of the mayor of the town of Van Buren of a violation of an ordinance of said town by "disturbing the peace by fighting and attempting to fight, and by boisterous and obstreperous conduct and carriage, and by using profane language." He appealed to the circuit court, and there he demurred to the charge because — First, the records of the town of Van Buren do not show that the ordinance violated was published as required by law; and, second, because it imposes a fine on persons for acts declared and made criminal by the statutes of the state. The court sustained the demurrer and discharged the defendant, and plaintiff appealed.

In the last case, Mike Cassidy was accused and convicted before the mayor of the city of Texarkana, in Miller county, in this state, of keeping his saloon open on the Sabbath, and retailing wines and liquors on that day, in violation of a city ordinance. He appealed to the circuit court, was again convicted, and then appealed to this court.

The acts of which the defendants in the first and third cases were accused, and a part of those with which the defendant in the second case was charged, are made penal by the statutes of this state. It may be conceded that they were made criminal before any of the ordinances prohibiting them were passed. Did the town or city councils that enacted the ordinance have the authority to pass them? The only authority which can rightfully be claimed for their enactment is section 764 of Mansfield's Digest. This section provides: "Municipal corporations shall have power to make and publish, from time to time, by-laws or ordinances, not inconsistent with the laws of the state, for carrying into effect or discharging the powers or duties conferred by the provisions of this act; and it is hereby made the duty of the municipal corporation to publish such by-laws and ordinances as shall be necessary to secure such corporations and their inhabitants against injuries by fire, thieves, robbers, burglars, and other persons violating the public peace; for the suppression of riots and gambling, indecent and disorderly conduct; for the punishment of all lewd and lascivious behavior in the streets and other places. And they shall have power to make and publish such by-laws and ordinances, not inconsistent with the laws of the state, as to them shall seem necessary to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort, and convenience, of such corporations, and the inhabitants thereof." Its language is sufficiently comprehensive to delegate the authority. But many courts have held that a municipal corporation can only pass ordinances punishing the same acts which are punishable under the general laws of the state when expressly authorized to do so, and that no such authority will be presumed from a grant of power general in its nature. If this be true, it must be because the effect of such ordinances is to supersede the general laws upon the same subject. We cannot see any good reason why such authority, fitting and proper to be delegated to a municipal corporation, and plainly conferred in general terms, cannot be exercised by the municipality, unless it be because it is inconsistent with the general laws. That is the effect of the authorities which hold it cannot be. Many of them say that the effect of such ordinances, if enforced, would be to oust the state of jurisdiction, or make the same offense punishable twice, — once by the state, and once by the corporation, — contrary to the constitution, and therefore they are invalid. In re Sic, 73 Cal. 142, 14 Pac. Rep. 405; Jenkins v. Thomasville, 35 Ga. 145; Mayor v. Hussey, 21 Ga. 80; Adams v. Albany 29 Ga. 56; Vason v. Augusta, 38 Ga. 542; Reich v. State, 53 Ga. 73; Foster v. Brown, 55 Iowa, 686, 8 N. W. Rep. 654; Washington v. Hammond, 76 N. C. 33; State v. Langston, 88 N. C. 692; State v. Brittain, 89 N. C. 574; State v. Keith, 94 N. C. 933; Ex parte Smith, Hemp. 201; Ex parte Bourgeois, 60 Miss. 663.

But we do not think the ordinances in question are invalid because they make offenses twice punishable. Municipal corporations "are bodies politic and corporate, vested with political and legislative powers for the local civil government and police regulations of the inhabitants of the particular districts included in the boundaries of the corporations." In some respects, they are local governments established by law to assist in the civil government of the country. They are founded in part upon the idea that the needs of the localities for which they are organized, "by reason of the density of population or other circumstances, are more extensive and urgent than those of the general public in the same particulars. Many acts are often far more injurious, while the temptation to do them are much greater in such localities than in the state generally. When done in such localities, they are not only wrongs to the public at large, but are additional wrongs to the corporations. To suppress them when it can be done, and, when there is a failure to do so, to punish the guilty parties, in many cases, form a part of the duties of such corporations. Many of them can and ought to be made penal by the incorporated cities and towns, although they are already made so by the statute. It sometimes becomes necessary for them to do so, in order to accomplish the objects of their organization. When made penal by the state and the city or town, each act becomes a separate offense against the state and the municipality. In that event the penalty imposed by the city or town is superadded to that fixed by the general law, on account of the additional wrong done, for the offense against the municipality. In such a case the wrong-doer would not be twice punished for the same offense. In Moore v. Illinois, 14 How. 19, the supreme court of the United States held that the passing of a counterfeit coin, which was punishable under the federal law, might be punished by the state as a crime, and that the same act was an offense against the federal government and against the state government. In delivering the opinion of the court, Mr. Justice GRIER said: "An `offense,' in its legal signification, means the transgression of a law. A man may be compelled to make reparation in damages to the injured party, and be liable also to punishment for a breach of the public peace, in consequence of the same act, and may be said, in common parlance, to be twice...