Brown v. City of Valdosta

• Decision Date: 15 December 1933
• Docket Number: 23615.
• Citation: 172 S.E. 72,48 Ga.App. 125
• Parties: BROWN v. CITY OF VALDOSTA.
• Court: Georgia Court of Appeals

172 S.E. 72

48 Ga.App. 125

BROWN v. CITY OF VALDOSTA.

No. 23615.

Court of Appeals of Georgia, First Division

December 15, 1933

Syllabus by Editorial Staff.

In prosecution in recorder's court for violation of ordinance, judgment overruling constitutional attack on ordinance and finding defendant guilty is not void, and is reviewable by certiorari, even if ordinance is not constitutional.

Ordinance penalizing purchase of intoxicating liquors held authorized by police powers of city of Valdosta.

Assignments of error alleging that statute is unconstitutional must be specific.

Assignments of error alleging that ordinance was unconstitutional held insufficient, where failing to designate any specific clause of Constitution as being violated.

Error from Superior Court, Lowndes County; W. E. Thomas, Judge.

Matthew Brown was convicted of an offense in the recorder's court of the City of Valdosta. The Superior Court refused to sanction his certiorari, and he brings error.

Affirmed.

W. A Morgan and W. E. Perry, both of Valdosta, for plaintiff in error.

Syllabus OPINION.

GUERRY Judge.

1. An attack upon an ordinance "upon the grounds that it is unconstitutional and void, and is in conflict with a statute of this state, which attack is not sustained by the trial court, does not render such judgment void, and the defendant when convicted, could sue out a writ of certiorari to correct any errors committed by the trial judge in sustaining the constitutionality and validity of the ordinance. Having jurisdiction of the subject-matter and of the person of the defendant, the judgment of the trial court, finding the defendant guilty and imposing punishment, was not void, even if the ordinance under which he was tried was unconstitutional and void. For this reason the case does not come within the decisions of this court, which hold that the writ of certiorari does not lie to correct a void judgment. Brown v. Brown, 99 Ga. 168, 25 S.E. 95; Levadas v. Beach, 117 Ga. 178, 43 S.E. 418; Bass v Milledgeville, 122 Ga. 177, 50 S.E. 59; McDonald v. Farmers' Supply Co., 143 Ga. 552, 85 S.E. 861; Griggs v. Macon, 154 Ga. 519, 526, 114 S.E. 899." Forbes v. Mayor, etc., of Savannah, 160 Ga. 701, 128 S.E. 806, 807. See, also, Robertson v. Russell, 13 Ga.App. 27, 78 S.E. 682; Gravitt v. Mullins, 28 Ga.App. 806, 113 S.E. 61; Mills v. Anderson, 20 Ga.App. 806, 93 S.E. 535; Simpkins & Co. v. Hester, 3 Ga.App. 160, 59 S.E. 322; Hilson v. Kitchens, 107 Ga. 230, 33 S.E. 71, 73 Am.St.Rep. 119; and compare Sawyer v. City of Blakely, 2 Ga.App. 159, 58 S.E. 399. Under the ruling in the Forbes Case, supra, certiorari was the proper remedy of the defendant to set aside a judgment of the recorder's court of the city of Valdosta convicting him of an offense embodied in a city ordinance of that city which he attacks as being unconstitutional and void.

2. There is no existing general law that makes penal the purchasing of intoxicating liquors, and the city of Valdosta could, under the police powers granted to it in its charter, make such act criminal. Bell v. City of Valdosta (Ga.App.) 171 S.E. 572, decided Nov. 3, 1933.

3. Assignments of error alleging that a statute is...