Charles A v. The City Council Of Augusta

• Citation: 4 Ga. 509
• Decision Date: 31 May 1848
• Docket Number: No. 52.,52.
• Parties: Charles A. and M. Williams, plaintiffs in error. vs. The City Council of Augusta, defendant.
• Court: Georgia Supreme Court

4 Ga. 509

Charles A. and M. Williams, plaintiffs in error. vs. The City Council of Augusta, defendant.

No. 52.

Supreme Court of the State of Georgia

MAY TERM, 1848.

Certiorari. Before Judge Holt, in Richmond county.

The plaintiffs in error were summoned to appear before the defendants, upon a charge of a violation of the 63d section of the General Ordinance of said city, in relation to keeping more than a certain quantity of gun powder in store. The plaintiff, appeared and objected to the jurisdiction of the city council; which objection was overruled, and a fine imposed of $300. The plaintiffs in error sued out a writ of certiorari to the Superior Court of Richmond county, on the grounds—

1st. Because the Legislature, in the Act of incorporation of the city of Augusta, and vesting powers in said city council, did not expressly grant the jurisdiction of such matters to said council, or make it an offence punishable by said council; but on the contrary, the Legislature had reserved the power over the subject-matter, having legislated on it, and imposed as a penalty the forfeiture of the powder. And the general welfare clause in said Act of incorporation, cannot enlarge the jurisdiction of the corporation, further than is necessary to carry into effect the specific grant.

2d. Because the Legislature could not have granted such jurisdiction: because the Constitution prohibits the delegation of suchpower; said city being neither a seaport town or port of entry.

3d. That if any offence had been committed, the plaintiffs in error were punishable under the Penal Code of Georgia, and not by the city council of Augusta.

Upon healing the certiorari, at January Term. 1848, before Judge Holt, it was admitted that the facts stated in the certiorari were true; and after hearing argument upon the legal questions, his Honor dismissed the writ with costs.

To this decision exceptions were filed, and error has been, assigned, as stated in the judgment of the Court.

I. L. Harris and Cone, representing Geo. Schley, for plaintiff in error.

A. J. Miller, for defendant.

I. L. Harris, for plaintiff in error, contended, that a "fine" being a punishment for crime or misdemeanor, can only be imposed after a jury shall have found, by verdict, the defendant guilty. For definition of fines, see Bouvier's Law Dict. 1 vol. 569.

That no powers have been conferred by the Act of incorporation of Augusta, to impose the "fine" complained of by plaintiff in error.

That the Legislature having by a general law imposed a punishment in relation to the keeping of gunpowder in store, it was not within the competency of the city council of Augusta, to modify, alter, enlarge, vary or change the punsihment thus prescribed for violations of that law.

That the Court below erred in deciding that the Legislature had the constitutional right to confer upon the city council of Augusta, the power to impose fines; since the city of Augusta is not a seaport and port of entry. See Prince Dig. p. 900.

A. J. Miller, for the defendant.

1st. The ordinance complained of, is valid under the Act. incorporating the city. Watkins Dig. 669. O'Donnell vs. City Council, decided by Judge Holt, 1830. Dubois VS. Same, Dudley's Rep. 30.

2d. The legislation by the State in relation to the transporta- tion of gunpowder, does not preclude the defendants from regulating, by ordinance, the manner in which it shall be stored. Dubois vs. City Council.

3d. The offender against the ordinance, is not entitled to a jury trial. Low vs. Coin's of P., It. M. Charlton's Rep. 302. O'Donnell vs. City Council.

Cone, counsel for the plaintiffs in error, in conclusion.

1st. The powers conferred on the city council, by the several Acts incorporating the city of Augusta, do not authorize the imposition of the fine complained of by the plaintiffs. Ordinance, City Council, 27, 70.

2d. The Legislature possessed no constitutional right to grant such a power to the city council. Prince, 909.

3d. The imposition of a fine necessarily presupposes the commission of a crime, and no person can be convicted and punished for a crime, without the interposition of a grand and petit jury. Hotchkiss, 12. Watkins' Dig. 16.

By the Court. —Warner, J., delviering the opinion.

The counsel for the plaintiffs in error have assigned three grounds of error in this Court, to the decision of the Court below.

1st. That the Court below erred, in deciding that the laws incorporating the city of Augusta, conferred on the city council, the power to pass the ordinance, by virtue of which the fine complained of was imposed on the plaintiffs in error.

2d. That the Court below erred, in deciding that the Legislature had the constitutional right to confer on the city council, the power to pass the ordinance complained of.

3d. That the Court below erred, in deciding that the city council had any jurisdiction over the matter.

The 63d section of the city ordinance of Augusta, provides, that all gunpowder which may be brought, to the city, shall be, by the owner or consignees thereof, conveyed to the public magazine of the city, except when persons are desirious to retail the same within the limits of the city; and then, it shall not be lawful for such retailer of gunpowder, to keep more thanfifty-six pounds in his store at any one time, the same to be kept in a tin or copper canister, or canisters; and any person, or persons, violating the ordinance, is made liable to forfeit, and pay a flue of not less than fifty, nor more than five hundred dollars, for each and every offence.

The defendants were fined for a violation of this ordinance, in keeping a larger quantity of gunpowder in their store, than authorized by it.

The 3d section of the Act of 31st January, 1798, incorporating the city of Augusta, gives the city council power and authority to make and establish such by-laws, rules and ordinances, that shall appear to them requisite and necessary, for the security, welfare and convenience of the said city; and to affix and levy fines for all offences committed against the by-laws of the said city. The ordinance regulating the keeping of gunpowder in the city, is, in our judgment, necessary for the security and welfare of the inhabitants in the city. It is a sanatory police regulation, for the benefit and safety of the persons and property within the limits thereof, and fully authorized by the Act of incorporation.

The two last assignments of error will be considered together; as the same question is virtually involved in both of them.

The position assumed by the counsel for the plaintiffs in error, is that the Legislature did not have the constitutional right, to confer on the city council the power to pass the ordinance complained of; that it is violative of the 5th section of the 4th article of the Constitution of this State, which declares that "trial by jury, as heretofore used in this State, shall remain inviolate." It is also urged, that according to the first section of the third article of the Constitution of this State, the Superior Court has exclusive jurisdiction in all criminal cases, "except as relates to people of color, and fines for neglect of duty, and for contempt of Court, for violations against road laws, and for obstructing water courses; which shall be vested in such judicature or tribunal, as shall be, or may have been, pointed out by law; and except in all other minor offences committed by free white persons, and which do not subject the offender, or offenders, to loss of life, limb or member, or to confinement in the penitentiary; in all such cases, corporation courts, such as now exist, or may hereafter be constituted in any incorporated city, being a seaport town and a port ofentry, may be vested with jurisdiction under such rules and regulations as the Legislature may hereafter by law direct;" that the city of Augusta not being a seaport town and a port of entry, the authority to impose the fine in question could not be conferred by the Legislature. This argument to be sound, must assume that the imposition of the fine for the violation of the city ordinance, was done in a "criminal case;" for if the proceeding had before the city council was a "criminal case, " within the meaning of the Constitution, then the Superior Court unquestionably had jurisdiction of the offence, and not the city council. The Common Law definition of a crime, as given by Blackstone, is an act committed, or omitted, in violation of a public law. 4 Black. Com. 3. And it is in this sense, that we consider the term "criminal cases" in the Constitution, was intended to have been understood.

The Superior Court has exclusive jurisdiction in all criminal cases; that is, where there has been a violation of any public law of the State, except all minor offences committed by free white persons, and which do not subject the offender or offenders, to loss of life, limb, or members, or to confinement in the penitentiary; in all such cases, that is to say, all minor violations of the public laws of the State, which do not subject the offender or offenders to loss of life, limb, or...