Town of Rutherford v. Swink

• Citation: 35 S.W. 554,96 Tenn. 564
• Parties: MAYOR, ETC., OF RUTHERFORD v. SWINK.
• Decision Date: 27 April 1896
• Court: Tennessee Supreme Court

35 S.W. 554

96 Tenn. 564

MAYOR, ETC., OF RUTHERFORD v. SWINK.

Supreme Court of Tennessee.

April 27, 1896

Appeal from circuit court, Gibson county; John R. Bond, Judge.

Suit by the board of mayor and aldermen of Rutherford against G. N Swink to recover a penalty under an ordinance. From a conviction before the mayor, defendant appealed to the circuit court, where there was judgment for defendant, and plaintiff appeals. Affirmed.

Deason & Rankins, for appellant.

Hill & Jones, for appellee.

ALLEN Special Judge.

This suit was commenced before the mayor of the town of Rutherford, in Gibson county, Tenn., to recover of defendant G. N. Swink, a penalty for violating a municipal ordinance of said town, by being drunk and using profane language on and along the streets of said town in April or May, 1889. The warrant was sued out June 21, 1889, against defendant for said offense, and the mayor of said town fined defendant the sum of $2, and rendered judgment against him for said fine and the costs of said suit, and the defendant appealed from said judgment to the circuit court of said county, where said suit had been pending ever since, until January term, 1896, when said case was finally tried, and resulted in verdict and judgment for defendant and plaintiff appealed in error to this court. There were several mistrials of the case in the circuit court, and the cost of this litigation, over the $2 fine, now amounts to about $725. At the time said offense was committed and this suit was commenced, the town of Rutherford was a regularly incorporated town, and it was governed by a board of mayor and aldermen, who had passed and put in operation certain ordinances and by-laws for the government of said town. There was an ordinance prohibiting drunkenness and disorderly conduct on the streets of said town. On August 9, 1892, while this suit was pending in the circuit court, the mayor and aldermen met, and passed an ordinance repealing all former ordinances of said town. This suit came on for trial again at the October term, 1895, of said court, and, after the trial had been commenced, said board of mayor and aldermen met, and passed an ordinance, on the 8th of October, 1895, repealing said repealing ordinance passed August 9, 1892. At that term there was another mistrial, as the jury failed to agree. On the trial at the January term, 1896, of said circuit court the judge charged the jury that the ordinance passed August 9, 1892, repealed all the ordinances in force in said town at that time, and that operated as a pardon to the defendant of said offense, and that said repealing ordinance ended plaintiff's right to maintain this suit, and that the ordinance passed October 8, 1895, which repealed the repealing ordinance of August 9, 1892, did not revive and bring back into force and effect the ordinance under which this suit was instituted. It is insisted that this charge was erroneous, and that the repeals of municipal ordinances come under section 47, Mill. & V. Code, which reads as follows, to wit: "The repeal of a statute does not affect any right accrued, any duty imposed, any penalty incurred nor any proceedings commenced, under and by virtue of the statute repealed." At common law the repeal of a statute ended all rights that were given by it, and it operated as a pardon of all offenses under it, and superseded the jurisdiction of the court in any suit pending to enforce a penalty under such repealed statute. This common-law rule was in force in this state, and applied to repeals of statutes and municipal ordinances alike, until the legislature passed said act, which was carried into...