Callaway v. Mims
| Decision Date | 21 October 1908 |
| Docket Number | 1,335,1,358,1,362,1,376,1,404,1,405. |
| Citation | 62 S.E. 654,5 Ga.App. 9 |
| Parties | CALLAWAY v. MIMS. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Whenever the General Assembly has, by direct enactment or by its settled public policy, derivable from the various statutes passed from time to time, brought within the police power of the state any particular subject, thereupon the municipal authorities of the cities and towns have the power, under the usual general welfare clause found in municipal charters, to deal with the subject, limited by the established rule that they cannot deal with an act which is purely a violation of a state criminal statute.
[Ed Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations,§§ 1311-1314.]
(a) In deciding whether a municipal ordinance is invalid by reason of the existence of a state criminal statute on the same general subject, the courts look not merely to the concrete acts which may in actual cases furnish the basis for convictions, but they examine both the statute and the ordinance, with the view of ascertaining the theoretical evils to be remedied by each, and thus determine whether the gist of the offense in each is the same. If so, the ordinance, unless it has been enacted in pursuance to direct express authorization by the General Assembly is void otherwise, it is valid, provided, of course, the subject-matter of the ordinance is legitimately within the purview of the express or implicit police power with which the municipality has been clothed.
(b) There is a substantial distinction between the maintenance of a "blind tiger," or place where liquors are illegally sold on the sly, and the crime either of selling liquors illegally or of keeping them on hand in public places of business. Municipal authorities, therefore, have the power, under the usual general welfare clause, to pass ordinances penalizing the maintenance of "blind tigers," notwithstanding the provisions of the state prohibition act of 1907 (Acts 1907, p. 81), on the same general subject.
(c) Municipal authorities have the power under the usual general welfare clause to prohibit the keeping on hand of intoxicating liquors for the purpose of illegal sale notwithstanding the provisions of the state prohibition act of 1907. The gist of the offense under such ordinances is materially different from the gist of any of the crimes created by the state statute.
[Ed Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations,§ 1312.]
A municipal ordinance which prohibits the keeping on hand of intoxicating liquors will not be declared void on the ground that it punishes mere intention, disconnected from any overt act.
Under the amendment to the charter of the city of Macon, approved August 17, 1907 (Acts 1907, p. 786), the recorder has the power to sentence a person convicted of a violation of any of the ordinances of the city to pay a fine not exceeding $500, or to confinement in the city barracks for not more than 60 days, or to labor on the public works and streets of the city for not more than 3 months, and he may impose an alternative sentence, of labor on the public works and streets, for default in the payment of any fine imposed; but he cannot impose the punishments cumulatively.
Error from City Court of Macon; Robt. Hodges, Judge.
Error from Superior Court, Bibb County; W. H. Felton, Judge.
Error from Superior Court, Chatham County; W. G. Charlton, Judge.
Hattie Mims, W. E. Lester, Mary Scarborough, and another, were convicted for violation of an ordinance of the city of Macon making it unlawful to keep a "blind tiger," or to keep for sale intoxicating liquors within the city of Macon. Each sued out a writ of habeas corpus against J. W. Callaway, superintendent of the city chain-gang at Macon; and from judgments sustaining the writs, Callaway brings error. Ike Bashinski was convicted in the recorder's court of Macon for a violation of the same ordinance; and, the judge of the superior court having refused to sanction a writ of certiorari, he brings error. C. H. Schroeder was convicted in the recorder's court of Savannah for violating an ordinance making it unlawful to keep within the corporate limits, for illegal sale, intoxicating liquors; and, the superior court having refused to sanction a writ of certiorari, he brings error. Judgment in the habeas corpus cases reversed, and in the Bashinski Case and in the Schroeder Case affirmed.
C. H. Hall, Jr., for plaintiff in error.
Nottingham & McClellan, for defendant in error.
In No. 1,358:
Minter Wimberly, Jesse Harris, and John R. Cooper, for plaintiff in error.
C. H. Hall, Jr., for defendant in error.
In No. 1,362:
C. H. Hall, Jr., for plaintiff in error.
W. D. McNeil, for defendant in error.
In No. 1,376:
O'Connor, O'Byrne & Hartridge, E. H. Abrahams, and Cann, Barrow & McIntire, for plaintiff in error.
Samuel B. Adams, for defendant in error.
C. H. Hall, Jr., for plaintiff in error.
Jesse Harris, for defendant in error.
1. Prior to January 1, 1908, there were in effect in this state several statutes directed against the sale of intoxicating liquors, but none against keeping them on hand. The general prohibition act of 1907 (Acts 1907, p. 81), in addition to forbidding the manufacture and sale, also makes it unlawful for any and all persons "to keep *** at any *** public places, *** or keep on hand at their place of business any intoxicating liquors." It is settled, beyond all possibility of dispute, that a municipal corporation, in the absence of express legislative authority, cannot punish for an offense against the criminal laws of this state. Strauss v. Waycross, 97 Ga. 475, 25 S.E. 329; Moran v. Atlanta, 102 Ga. 840, 30 S.E. 298; Hood v. Von Glahn, 88 Ga. 413, 14 S.E. 564; Braddy v. Milledgeville, 74 Ga. 516, 58 Am.Rep. 443; Mayor of Savannah v. Hussey, 21 Ga. 80, 68 Am.Dec. 452; Jenkins v. Thomasville, 35 Ga. 145; Adams v. Albany, 29 Ga. 56; Collins v. Hall, 92 Ga. 411, 17 S.E. 622; Littlejohn v. Stells, 123 Ga. 427, 51 S.E. 390; Penniston v. Newman, 117 Ga. 700, 45 S.E. 65; Thrower v. Atlanta, 124 Ga. 1, 52 S.E. 76, 1 L.R.A. (N. S.) 382, 110 Am.St.Rep. 147. It is equally well settled that prior to the enactment of the prohibition law of 1907 (Acts 1907, p. 81) those cities, the charters of which contained the usual general welfare clause, might pass ordinances prohibiting the keeping on hand of intoxicating liquors for the purpose of illegal sale. Sawyer v. Blakely, 2 Ga.App. 161, 58 S.E. 399; Sutton v. Washington, 4 Ga.App. 30, 60 S.E. 811; Mayson v. Atlanta, 77 Ga. 663; Menken v. Atlanta, 78 Ga. 668, 2 S.E. 559; Mabra v. Atlanta, 78 Ga. 679, 4 S.E. 154; Hood v. Griffin, 113 Ga. 190, 38 S.E. 409; Osburn v. Marietta, 118 Ga. 53, 44 S.E. 807; Reese v. Newnan, 120 Ga. 198, 47 S.E. 560; Paulk v. Sycamore, 104 Ga. 728, 31 S.E. 200; Bagwell v. Lawrenceville, 94 Ga. 654, 21 S.E. 903; Brown v. Social Circle, 105 Ga. 834, 32 S.E. 141; Papworth v. Fitzgerald, 106 Ga. 378, 32 S.E. 363; Cunningham v. Griffin, 107 Ga. 690, 33 S.E. 664; Robinson v. Americus, 121 Ga. 180, 48 S.E. 924; Duren v. Stephens, 126 Ga. 496, 54 S.E. 1045; Rooney v. Augusta, 117 Ga. 709, 45 S.E. 72; Little v. Fort Valley, 123 Ga. 503, 51 S.E. 501. So, also, ordinances forbidding the maintenance of "blind tigers," or places where liquors were kept or stored for illegal sale, were legitimate municipal enactments. Bagwell v. Lawrenceville, 94 Ga. 654, 21 S.E. 903; Cunningham v. Griffin, 107 Ga. 690, 33 S.E. 664; Osburn v. Marietta, 118 Ga. 53, 44 S.E. 807. Under these ordinances testimony as to the keeping of liquor and of one or more illegal sales thereof was deemed sufficient to authorize a conviction. Sawyer v. Blakely, 2 Ga.App. 161, 58 S.E. 399; Mabra v. Atlanta, 78 Ga. 679, 4 S.E. 154; Rooney v. Augusta, 117 Ga. 709, 45 S.E. 72; Reese v. Newnan, 120 Ga. 198, 47 S.E. 560; Robinson v. Americus, 121 Ga. 180, 48 S.E. 924.
The foundation of these decisions has been declared to rest upon the proposition that "whenever the General Assembly has by direct enactment, or by its settled public policy derivable from the various statutes passed from time to time brought within the police power of the state any particular subject, then the municipal authorities of a town or city would seem to have the power, under the usual general welfare clause in municipal charters, to deal with such subject by proper ordinance, limited only by the established rule that they cannot deal with an act which is declared to be a violation of the criminal laws of the state." Henderson v. Heyward, 109 Ga. 379, 34 S.E. 592, 47 L.R.A. 366, 77 Am.St.Rep. 384. It may be noted, too, that although the ordinance be valid at the time of its adoption, if the General Assembly subsequently makes the identical offense which is punishable under the ordinance a crime against the state, the ordinance thereupon ipso facto loses its validity as to future transactions. Jenkins v. Thomasville, 35 Ga. 147; Strauss v. Waycross, 97 Ga. 475, 25 S.E. 329. In cases where there has been an attempt to set aside ordinances because of the existence of state statutes on the same subject, various tests have been proposed for the determination of whether there is such an identity between the crimes created by the state laws and the offenses created by the ordinances as to make the latter invalid. That the offender will be liable to prosecution under the state statute for something done in connection with the act by which the ordinance is violated, or for an act which merely tends to make proof of some element of the municipal offense creates no such identity; for example, that the offender under an ordinance forbidding the keeping for...
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