32 S.E. 86 (Ga. 1898), Calhoun v. Little

CourtSupreme Court of Georgia
Writing for the CourtCOBB, J.
JudgeAll the justices concurring, except LITTLE, J., disqualified.
Citation32 S.E. 86,106 Ga. 336
Docket Number.
Date23 December 1898

Page 86

32 S.E. 86 (Ga. 1898)

106 Ga. 336




Supreme Court of Georgia

December 23, 1898

Syllabus by the Court.

1. The town of Waresboro derives its authority to exercise corporate functions from an act of the general assembly passed on December 9, 1893 (Acts 1893, p. 335), granting a new charter to such town. Under this act, an ordinance which confers upon the police court of the town authority to punish by imprisonment without giving persons convicted of offenses against the town an opportunity to pay a fine is void for want of authority in the town council to pass it.

2. In all cases where judges of courts of general jurisdiction are exempt from civil liability in damages for their judicial acts, presiding officers of courts of limited jurisdiction are likewise exempt. (a) It follows, therefore, that where the presiding officer of a municipal court judicially determines that a given ordinance is valid, though in fact it is void for want of authority in the town council to pass it, he will not be liable in damages to a person convicted in his court of an offense against the town, and punished under such ordinance by imprisonment, without having been given an opportunity to pay a fine, provided the court in which such person is convicted has jurisdiction of the subject-matter of the offense.

3. Where a section of the Code has been codified from a decision of this court, it will be construed in the light of the source from which it came, unless the language of the section imperatively demands a different construction. (a) Section 752 of the Political Code has no application to acts of a member of a town council when he is presiding in a police court which is authorized by the charter of the town.

4. The principles above announced control the case. There was no material error in the charges complained of. The evidence amply warranted the verdict, and there was no error in refusing a new trial.

Error from superior court, Ware county; J. L. Sweat, Judge.

Action by B. S. Calhoun against E. P. Little. Judgment for defendant, and plaintiff brings error. Affirmed.

Page 87

Hitch & Myers, for plaintiff in error.

Leon A. Wilson, for defendant in error.


On June 26, 1896, Little, as mayor pro tem. of the town of Waresboro, tried Calhoun upon the charge of violating the following ordinance of the town: "It shall be unlawful for any person or persons to engage in fighting or riotous conduct within the corporate limits of the town of Waresboro, or resist or obstruct the marshal or any policeman while in the discharge of their official duties." The accused was convicted, and the following sentence was passed upon him: "After hearing the evidence in the above-stated case, it is ordered and adjudged by the court that the defendant be kept in the jail of the town of Waresboro for three days." It appears from the minutes of the town council that this sentence was afterwards commuted, by the officer who tried the accused, to imprisonment for one day. This sentence was passed pursuant to the following ordinance: "Any person who shall commit any or either of the offenses hereinbefore mentioned *** shall on conviction for each offense be sentenced to pay a fine of not less than one dollar nor exceeding twenty dollars, or imprisonment and work on the public streets not exceeding thirty days." The ordinances herein quoted were passed in 1888. The present suit is an effort on the part of Calhoun to recover damages from Little on account of the alleged illegal detention of the plaintiff in the town jail. The petition alleges that the sentence above quoted was without authority of law, and that the imprisonment of petitioner thereunder was malicious and in violation of law; that petitioner had violated no ordinance of the town; and that the conviction and sentence was a willful and malicious persecution. The petition further alleges that efforts were made on the part of friends of petitioner to give bond or deposit any sum of money required to enable him to have the sentence reviewed and set aside, but that these efforts were unavailing. The defendant answered, denying that the sentence and imprisonment thereunder were malicious or without authority of law, and averred that his acts were in furtherance of law and order. The allegations in the petition as to efforts to give bond in order to have the sentence reviewed are also denied. At the trial the evidence showed that the defendant was regularly elected a member of the town council on June 22, 1896. From an extract of the minutes of the council it appears that the defendant was elected mayor pro tem. on July 6, 1896, but there was testimony showing that he was mayor pro tem. at the date of the trial of the plaintiff, for the alleged violation of the ordinance of the town. The defendant testified that no bond was ever offered him either by Calhoun or by any one in his behalf. The jury returned a verdict for the defendant, and, plaintiff's motion for a new trial being overruled, he excepted.

1. Were the ordinances under which the plaintiff in error was convicted and sentenced to imprisonment by the defendant valid at the time of the trial? These ordinances were passed under authority of a charter granted to the town by the superior court, the provisions of which charter will be found in sections 685-710 of the Political Code. An examination of these provisions will show that the ordinances were valid at the time of their passage. In 1891 an act was passed prohibiting the general assembly from granting charters to towns of less than 2,000 inhabitants, and conferring upon the superior courts exclusive power to grant such charters. Acts 1890-91, p. 190. This act was repealed on December 1, 1893. Acts 1893, p. 65. In the case of Fullington v. Williams, 98 Ga. 807, 27 S.E. 183, this act was held to be constitutional and valid. On December 9, 1893, a new charter was granted the town of Waresboro by the general assembly. Acts 1893, p. 335. This act has never been repealed either expressly or by implication, nor has its validity been in any way impaired. From it, therefore, the town of Waresboro must derive whatever authority it has to exercise corporate functions. This act repeals all former charters granted to the town, but provides that all ordinances then in force, and not inconsistent with its provisions, shall be valid and of force until amended or repealed by the mayor and aldermen of the town. An examination of the act will show that the ordinance which defined the offense for which Calhoun was tried is perfectly consistent with its provisions. Is the ordinance which prescribes the punishment to be inflicted upon persons convicted of offenses against the town also consistent with the provisions of the act? Section 11 of the act is as follows: "Be it further enacted, that the mayor or mayor pro tem. of said town shall hold a police court in...

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