City of Lumberton v. Frederick
| Decision Date | 10 October 1932 |
| Docket Number | 30277 |
| Citation | 143 So. 488,165 Miss. 456 |
| Court | Mississippi Supreme Court |
| Parties | CITY OF LUMBERTON v. FREDERICK |
(Division B.)
Changing municipality from town to city held not to affect validity of ordinance prohibiting possession of liquor, but ordinance remained effective.
Ordinance making all offenses amounting to misdemeanors under state laws offenses against municipality when committed within its limits includes offenses which legislature may subsequently declare misdemeanors (Code 1930, section 2549).
Supreme court must raise question of jurisdiction arising on record, of its own motion, though not otherwise raised.
Municipality may prosecute appeal to supreme court from judgment actually acquitting defendant under ordinance, where question of law has been decided adversely (Code 1930, section 19 (2)).
Acquittal of defendant of violation of ordinance on ground ordinance was invalid held adverse determination of question of law, entitling municipality to appeal (Code 1930, section 19 (2)).
APPEAL from circuit court of Lamar county.
HON. J. Q. LANGSTON, Judge.
Criminal prosecution by the City of Lumberton against D. V. Frederick. From a judgment of the circuit court acquitting the defendant, on appeal from a conviction in the municipal court, the City of Lumberton appeals. Error.
Error.
John A. Yeager, of Lumberton, and T. W. Davis, Jr., of Purvis, for appellant.
Courts take judicial notice of municipal ordinances.
Naul v. State, 70 Miss. 699, 12 So. 903; Kyle v. Calhoune City, 123 Miss. 542, 86 So. 340; Watkins v. Brookhaven, 134 Miss. 556, 90 So. 363; Section 1598, Code 1930; 1 Greenl. Ev. sec. 14; Callsend v. Hope, 75 F. 758; Lane v. Harris, 16 Ga. 217; City v. Jarrett, 17 Md. 309; City v. O'Conner, 13 La. Ann. 486; Jewell v. Center, 25 Ala. 498; Mims v. Schwartz, 37 Tex. 13; Jones v. United States, 137 U.S. 214, 15 R. C. L. 1066; Wilkerson v. Webb, 75 Miss. 403, 23 So. 180; 15 R. C. L. 1116.
Counsel for appellee convinced the court below by his zeal and eloquence that the ordinance in question is void for the reason that it was adopted by the "Town of Lumberton" in 1920 and thereafter--1932, sought to be enforced by the "City of Lumberton."
We insist that the ordinance as offered in evidence by virtue and force of section 2547, Code of 1930, is entitled to the presumption of law as to its lawful existence and competency as evidence.
Section 88 of the Constitution of 1890, provides "the Legislature shall pass general laws, under which cities and towns may be chartered and charters amended. Section 192 of the Constitution speaks of "cities" or "towns." In the first instance the two are connected by the conjunction "and" and in the second instance by the noun "or" and in Adams v. L. F. L. Co., 103 Miss. 491, 60 So. 645, our Supreme Court uses the comprehensive term "municipalities."
The ordinance having been passed under authority of section 3410, Code of 1906, or section 2549, Mississippi Code 1930, covers within its sweep not only the infraction thereof within the corporate limits of Lumberton, the state laws in effect in 1920, but that it covers and embraces within its scope any misdemeanor made so by the statute, subsequent to the adoption of the ordinance as well; and that the ordinance is prospective in its force and effect as well as retroactive.
Lindsey v. City of Louisville, 125 So. 558; Greenwood v. Jones, 46 So. 161.
Section 2549 of the Code makes the ordinance applicable to "city, town or village," and while the courts do not take judicial notice of municipal ordinance (Kyle v. City, 123 Miss. 542) yet section 2547 of the Code makes the ordinance as it stood before the court in this case prima facie evidence of its lawful existence and therefore we most humbly suggest that the presumption of law should have prevailed in its favor rather than against its validity.
It will be noted that the Constitution and statutes prescribed "that there must be actual acquittal or conviction on the merits" in order to bar another prosecution. In the case at bar: (a) No motion was made to exclude the evidence offered on the part of the City.
(b) No motion or request was made seeking at the hands of the court a directed verdict.
Therefore, no determination of the case on the merits and no "actual acquittal" of the defendant occurred.
Appellee was prosecuted in the municipal court of the city of Lumberton for the crime of being in possession of intoxicating liquor in violation of an ordinance of said city. He was convicted, and from that judgment appealed to the circuit court, where there was a trial de novo resulting in verdict and judgment of acquittal. From that judgment appellant prosecutes this appeal under the authority of paragraph 2 of section 19 of the Code of 1930.
The evidence showed the appellee's guilt to a moral certainty and beyond all reasonable doubt. In fact there was no conflict in the evidence as to his guilt. He was acquitted because the court held that the city of Lumberton had no valid ordinance prohibiting the possession of intoxicating liquor. The ordinance relied on was introduced by the city and objected to by appellee. It is what is known as a "blanket ordinance," and was adopted under the authority of section 3410 of the Code of 1906, which has been continuously in force since and appears as section 2549 of the Code of 1930. That statute provides as follows: "All offenses under the penal laws of the state which are a misdemeanor shall, when so provided by a general ordinance of the municipality, also be offenses against the city, town or village in whose corporate limits the offense may have been committed to the same effect as though such offenses were made offenses against the city, town or village by separate ordinance in each case, and upon conviction thereof the same punishment shall be imposed by the city, town or village as is provided by the laws of the state with regard to such offenses against the state not in excess of the maximum penalty which may be imposed by municipal corporations."
The caption to the ordinance recited that it was an ordinance of the "Town of Lumberton." The ordinance was passed in 1920. At that time, under the laws of this state, Lumberton was a town and not a city, but when this case was tried it had become a city. Appellee's objections to the introduction of the ordinance may be summed up into two: First, that the ordinance had no force as law of the city of Lumberton because it was adopted when Lumberton was a town and before it became a city; second, that the liquor laws of the state declaring certain violations thereof misdemeanors have been materially changed since 1920 when the ordinance was adopted, and therefore it was without any force and effect. The court sustained the objection to the ordinance and ruled it out. A judgment of not guilty therefore necessarily followed.
We will consider the objections to the ordinance in the order stated. When a municipality under the law has sufficient population to raise it from a town to a city, it does not follow that thereby all the laws of the town are repealed unless the city chooses to readopt them. If that were true, for a like reason all the contracts and obligations of the...
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