O'Haver v. Montgomery

• Decision Date: 04 May 1908
• Citation: 111 S.W. 449,120 Tenn. 448
• Parties: O'HAVER v. MONTGOMERY.
• Court: Tennessee Supreme Court

111 S.W. 449

120 Tenn. 448

O'HAVER v. MONTGOMERY.

Supreme Court of Tennessee.

May 4, 1908

Certiorari from Court of Civil Appeals.

Habeas corpus by S. R. Montgomery for his discharge from imprisonment on conviction of violation of an ordinance of the city of Memphis. Judgment discharging the petitioner was affirmed by the Court of Civil Appeals, and George T O'Haver, chief of police of the city of Memphis, brings certiorari. Certiorari granted, and judgment reversed.

Thomas H. Jackson and M. G. Evans, for complainant.

Bell Terry, Anderson & Bell, for defendant.

NEIL J.

On the 19th of September, 1907, an affidavit was made before Hon. A C. Floyd, city judge of the corporation of Memphis, that on the day mentioned S. R. Montgomery had committed the offense of failing and refusing to lay a granolith sidewalk to curb at 1210 Poplar avenue, pursuant to notice served on him April 5, 1907, contrary to law and the ordinances of the city. Upon this affidavit being made, a warrant was issued for the arrest of Mr. Montgomery, and he was accordingly arrested and brought before Judge Floyd for trial. On the 2d of October, Mr. Montgomery was tried and found guilty, and sentenced to pay a fine of $50, and in default of payment, or security therefor, to be committed to the workhouse until the fine should be secured, paid, or worked out. Failing to pay the fine, a mittimus was issued to the keeper of the workhouse, directing Mr. Montgomery to be kept at labor, as authorized by the ordinances of the city for the period of 125 days, unless the fine should be sooner paid, or unless he should be sooner delivered according to law. Thereupon Mr. Montgomery filed a petition for habeas corpus before Hon. J. S. Galloway, judge of probate court of Shelby county, alleging that he was illegally restrained of his liberty by George T. O'Haver, chief of police of the city of Memphis, that he was tried pursuant to the proceedings above referred to, and that the ordinance under which he was convicted was unconstitutional and void. The writ was issued and a return made by the officer, and in due time the cause was tried before Judge Galloway, resulting in a judgment that Mr. Montgomery was illegally restrained of his liberty and releasing him from custody. The chief of police appealed to the Court of Civil Appeals, and in that court the judgment of Judge Galloway was affirmed. To correct the latter judgment a petition for certiorari was filed in this court, asking that the cause be brought here and retried.

The ordinance is set out in the record, but it need only be stated that it contained provisions to the effect that the legislative council should by resolution or order designate the particular sidewalks and parts of sidewalks on which the owners and claimants of city lots were required to construct pavements, or repair pavements, in front of such lots, and the width of the pavements and the material out of which they should be constructed; that upon the adoption of such resolution the mayor should prepare a copy thereof from the minutes of the legislative council and cause the same to be transmitted to the chief of police; that it should thereupon be the duty of the latter to cause personal notice to be given in writing to such owners, claimants, and occupants, or agents of owners, claimants, and occupants, in front of whose lots pavements or sidewalks had been so ordered, to construct the pavements in 30 days. The ordinance contained certain provisions concerning the method of construction of the sidewalks, the dimensions, etc. The resolution of the legislative council directed that the pavements should be laid in granolith. The defendant in error received due notice, but declined to construct the pavement, as already stated.

There are provisions in the ordinance other than those above mentioned, but they do not affect the present inquiry, and need not be referred to, except to say that the eighth section contains the provisions under which the defendant in error was arrested, and this section will be presently set out in totidem verbis.

Assuming for the present that the legislative council of Memphis had the power to pass an ordinance requiring the citizens and property owners of the municipality to lay sidewalks of the description contained in the ordinance in question, we shall proceed to examine into the validity of section 8, and the right asserted by the city to imprison in default of payment of the fine therein authorized.

The section referred to reads "that a violation or failure to conform to this ordinance shall be a misdemeanor, subjecting the offender, upon conviction, to a fine of not less than one dollar, nor more than fifty dollars."

The word "misdemeanor," as employed in statutes conferring power upon municipal corporations, is not wholly synonymous with the same term as used at common law, or in general statutes defining offenses against the state of a grade less than felony, but has a more restricted meaning, being limited to offenses against the smaller local government. However, it may happen, and often does happen, that an offense against the city may also be an offense against the state, and both jurisdictions may punish ( Greenwood v. State, 6 Baxt. 567, 573, 574, 32 Am. Rep. 539; State v. Mason, 3 Lea, 649; Ogden v. Madison, 111 Wis. 413, 87 N.W. 568, 55 L. R. A. 506); but there are many offenses against municipalities which are not offenses against the state, and which the legislative bodies of municipal corporations are authorized to define and declare by ordinance (Trigally v. Mayor, 6 Cold. 388; 2 Abb. Munic. Corp. pp. 1311, 1312, § 519), subject, of course, to the condition that such ordinance is not in violation of the Constitution or general laws of the state, or the charter of the corporation itself, and is not unreasonable. But this power must be vested in them by the Legislature, which may be accomplished either by direct grant, or to some extent by the implication necessarily attendant upon the mere existence of the corporation as a creation of law (1 Dill. Munic. Corp. § § 315, 316; 2 Abb. Munic. Corp. pp. 1299, 1300, 1308-1311; Smith & Lackey v. Mayor of Knoxville, 3 Head, 245, 248); and when the grant of power is direct it may be by either special provisions or general, or by both (Mayor, etc., of Nashville v. Linck, 12 Lea, 499, 508, et seq.; Long v. Taxing District, 7 Lea, 134, 136, 40 Am. Rep. 55 et seq.).

The power to imprison for violation of an ordinance, or for failure to pay a fine assessed for violation of an ordinance, must be expressly conferred by the Legislature, and there must be a judicial ascertainment of the offense and assessment of the fine and penalty before the imprisonment can be inflicted. The power must be clear before it can be held to exist or be used. 1 Dill. Munic. Corp. (3d Ed.) § 353. Such powers, however, are frequently devolved upon municipal corporations in this country. 2 Abb. Munic. Corp. pp. 1367, 1368, § 553.

In the charter of Memphis both powers were expressly conferred by the Legislature. In section 3, c. 11, p. 16, and section 1, c. 84, p. 98, of the Acts of 1879, which, with subsequent amendments thereto, constitute the charter of the city, it is provided: "That the local government established by this act shall have power to establish workhouses, and houses of correction, to declare by local laws, what acts shall be misdemeanors, and when committed within the taxing district to punish the offenders by fines and forfeittures and by imprisonment and labor, within and without the workhouse, in default of payment of the fines imposed as punishment."

These provisions were expressly approved and applied as far back as the April term, 1886, of this court, in the case of State, etc., v. Taxing District of Shelby County, 16 Lea, 240, 250, 251; and as early as the December term, 1882, it was held that the constitutional provision that "the Legislature shall pass no law authorizing imprisonment for debt in civil cases" had no reference to the enforcement of the collection of fines, penalties, and costs from defendants convicted of the violation of ordinances of municipal corporations. Mosley v. Gallatin, 10 Lea, 494.

The charter of Gallatin applied in that case contained the provision that "any person who shall fail or neglect to pay any fine or costs imposed upon him by any ordinance of said town shall be committed to the workhouse until such fine and costs shall be fully paid." At the last term at Nashville, in the case of Till Gannaway v. City of Murfreesboro (no opinion filed), the court recognized as valid and applied subsection 21 of section 8 of the charter of that city, reading as follows: "That the city council shall have full power and authority by ordinance, within the municipality, to impose fines, forfeitures and penalties, for the breach of any ordinance, and to punish by imprisonment within or without workhouses, in default of payment of fines and costs: Provided, that imprisonment shall not last longer than three months, and the expense of conviction as fixed by law."

The charters of the various municipalities of the state generally, it is believed, contain similar provisions. It is true that at the September term, 1877, in the case of Hogan v. Mayor and Aldermen of Chattanooga, the question was reserved whether the power to imprison existed, while it was conceded that the offender might be arrested and "held in custody and compelled to secure the penalty." 2 Shan. Tenn. Cas. 339, 341. However, as seen, the question has been fully settled in later cases.

It is true that in several cases (Meaher v. Mayor and Aldermen of Chattanooga, 1 Head, 75; Wood v. Mayor and Aldermen of Grand Junction, 5 Heisk. 440; Mayor of Bristol v. Burrow, 5 Lea,...