Brieswick v. The Mayorand City Council Of The City Of Brunswick

• Decision Date: 31 January 1874
• Citation: 51 Ga. 639
• Parties: Robert Brieswick et al., plaintiffs in error. v. The Mayorand City Council of the City of Brunswick, defendant in error.
• Court: Georgia Supreme Court

51 Ga. 639

Robert Brieswick et al., plaintiffs in error. v. The Mayorand City Council of the City of Brunswick, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1874.)

Municipal corporations. Fines. Constitutional law. Habeas corpus. Before Judge Harris. Glynn Superior Court. May Term, 1873.

For the facts of this case, see the decision.

W. Williams; R. L. Joice; M. L,. Mershon, by brief, for plaintiffs in error.

S. C. DeBruhl, by S. D. McConnell, for defendant. Warner, Chief Justice.

It appears from the record and bill of exceptions in this case, that Robert Brieswick and Cyrus Shelton, two boys un-der *fourteen years of age, were imprisoned in the guardhouse of the city of Brunswick; that they were brought before the judge of the superior court on a writ of habeas corpus, on the allegation in their petition therefor, that their imprisonment was illegal. The court, after examining into the cause of their capture and detention, on the return of the habeas corpus, discharged them from the custody of the officer who had them in charge. They were again arrested and imprisoned in the guard-house of said city, and again brought before the judge of the superior court on a second writ of habeas corpus, on the return of which it appeared by the answer of the guardhouse keeper, that he detained them in custody by virtue of a warrant of commitment issued by the mayor of said city, dated the 4th of June, 1873; the order of discharge for the same alleged offense being dated 23d of May, 1873. The warrant of commitment recited that the defendants had been found guilty on the 23d day of May, 1873, of violating an ordinance of the city "to prevent persons from indecently exposing themselves or others, " and sentenced to pay a fine of $5 00, or in default thereof to be confined in the guard-house ten days, and each having failed and refused to pay said fine, respectively; and whereas, the said Shelton and Brieswick have been confined by you in said guardhouse for the space of three days; these are therefore to command you to secure the bodies of the said Shelton and Brieswick and keep them, and each of them, in the guard-house seven days from the date of their reception. There does not appear to have been any warrant issued for their arrest, founded on the affidavit of any person, but simply a notice served upon them, signed by the city marshal, requiring them to appear before the police court, stating that they were charged with the offense of "bathing at a wharf known as the Cotton Press." On hearing the second habeas corpus the court refused to discharge them, and remanded them to be imprisoned; whereupon the defendants excepted. In view of the facts disclosed by the record in this case, it may well be doubted whether the two boys who were arrested and imprisoned, were not deprived of *their liberty without the due process of law: See Code, sections 4714, 4715, 4723, 4724, 4725. There was no affidavit made by any person charging them with having violated any ordinance of the city prior to their arrest and detention. They were simply notified to appear before the police court as being charged with "bathing at the wharf known as the Cotton Press." They were charged with and imprisoned, for having committed the offense jointly, whereas, the offense was not joint, but several as to each one of them. The warrant of commitment recites that they were found guilty of violating an ordinance of the city "to prevent persons from indecently exposing themselves or others." Thefirst section of the ordinance of the city, number eighty-five, prohibits any person from wilfully making any indecent or public exposure of his or her person, or of any other person. The second section of said ordinance prohibits any person from swimming or bathing in the river opposite the city, at any place below or south of the mouth of the canal, between daylight in the morning and eight o\'clock in the evening, except in bathhouses, or in bath dresses. These two sections recognize two distinct offenses, to-wit: wilfully making an indecent or public exposure of the person, swimming or bathing at certain described points, except in bath-houses or in bath dresses. For which offense were the two boys imprisoned? ...