Clark v. City Of Fitzgerald

• Decision Date: 22 February 1910
• Docket Number: (No.1,921.)
• Parties: CLARK v. CITY OF FITZGERALD.
• Court: Georgia Court of Appeals

67 S.E. 127

7 Ga.App. 437

CLARK

v.CITY OF FITZGERALD.

(No.1, 921.)

Court of Appeals of Georgia.

Feb. 22, 1910.

(Syllabus by the Court.)

1. Municipal Corporations (§ 111^*)—Ordinances—Effect of Partial Invalidity.

Where a municipal ordinance is valid in part and invalid in part, and the valid part is separable from the invalid part, the ordinance as a whole will not fall, but the valid part will be upheld.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 248; Dec. Dig. § 111.*]

2. Conviction Authorized by Evidence.

The evidence amply authorized the conviction, and there was no error in overruling the certiorari.

(Additional Syllabus by Editorial Staff.)

3. Municipal Corporations (§ 121*)—Ordinances.

Where an ordinance making persons convicted of disorderly conduct subject to a fine not exceeding $100, or 90 days in jail, or at work on the streets in the city, or all, in the discretion of the mayor, was valid under the charter only in so far as it authorized a fine of $100, and an alternative sentence to work on the public works of the city not exceeding 60 days, a person so convicted, who was only sentenced to pay a fine of $25, or in lieu thereof to work on the public works for 25 days, was not affected by the invalid portion of the ordinance, and could not complain thereof.

[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 121.*]

Error from Superior Court, Ben Hill County; U. V. Whipple, Judge.

Tom Clark was convicted of disorderly conduct, in violation of a city ordinance of the City of Fitzgerald, and brings error. Affirmed.

McDonald & Quincey, for plaintiff in error.

E. Wall, for defendant in error.

RUSSELL, J. Tom Clark was convicted in the mayor's court of the city of Fitzgerald of the offense of disorderly conduct, and sentenced to pay a fine of $25 or to work 25 days on the public works of the city. The ordinance under which he was tried and convicted provides that persons convicted of disorderly conduct "shall be fined in a sum not to exceed $100 or 90 days in jail or at work on the streets of the city, or all, in tee discretion of the mayor." This ordinance was passed prior to the act of 1907 (Laws Ga. 1907, p. 609), creating a new charter for the city of Fitzgerald. In the last section of the act just referred to it is provided "that all ordinances passed by the mayor and council of the city of Fitzgerald under a former charter, or any amendment thereof, which are now in force, and which are inconsistent with and at variance with this act, be and are hereby expressly repealed; but all ordinances of said city of Fitzgerald heretofore passed and now in force, which are not inconsistent with this act, are continued as ordinances of the said city of Fitzgerald in full force and effect until the same have been repealed by ordinance or resolution of the mayor and council as provided for in this act." The power of the mayor to impose penalties for violation of the city ordinances is expressly limited by the act (section 4) as follows: "The mayor * * * shall have full power and authority to hold * * * a mayor's court for said city for the trial of offenders against the ordinances of said city, and impose such penalties for violation thereof as may be prescribed by ordinance, not exceeding a fine of two hundred dollars, and imprisonment and labor on the public works of the city for sixty days for each offense, but shall in all cases make the sentence in the alternative."

It is contended by the plaintiff in error that the ordinance under which he was tried and...