Hood v. Von Glahn

• Decision Date: 11 January 1892
• Citation: 14 S.E. 564,88 Ga. 405
• Parties: HOOD, Chief of Police, et al. v. VON GLAHN.
• Court: Georgia Supreme Court

14 S.E. 564

88 Ga. 405

HOOD, Chief of Police, et al. v. VON GLAHN.

Supreme Court of Georgia

January 11, 1892

Syllabus by the Court.

1. In 1857, although there was a general penal statute, operative throughout the state, making it a misdemeanor to keep open a tippling house on the Sabbath day, there was nothing to inhibit the general assembly from passing a local statute for the city of Augusta, empowering the city council "to pass all ordinances in relation to keeping open tippling-houses on the Sabbath day in said city."

2. The language of the third section of the act of December 22 1857, being that "the city council of Augusta are hereby further empowered to pass all ordinances in relation to keeping open tippling-houses on the Sabbath day in said city," etc., the authority was delegated to the city council to enact an ordinance in these terms: "No retailer shall sell or furnish to any person or persons spirituous, vinous, or fermented liquors on Sundays, *** nor shall they, when thus not permitted to sell, open, have or keep open, the doors or windows of their retail shops; and this provision applies to any bar-room, tippling-house, shop store, or confectionery in which liquors are sold or furnished."

3. The recorder's court has jurisdiction to try violations of the aforesaid ordinance, committed by keeping open a bar on Sunday; and a person convicted in that court has no right to be discharged on habeas corpus, based on the alleged want of such jurisdiction, by reason of the criminal act being a violation of the general law of the state as well as of the city ordinance.

Error from city court, Richmond county; W. F. EVE, Judge.

Prosecution by George M. Hood, chief of police, and others, against Henry Von Glahn, for keeping a tippling-house open on the Sabbath. Defendant was convicted, and from a judgment discharging him on habeas corpus, plaintiffs bring error. Reversed.

J. S. & W. T. Davidson and S. B. Adams, for plaintiffs in error.

P. J. Sullivan and F. G. du Bignon, for defendant in error.

SIMMONS J.

In 1857 the legislature passed an act which provided as follows: "Said city council of Augusta are hereby further empowered to pass all ordinances in relation to keeping open tippling-houses on the Sabbath day in said city, and in relation to lewd houses, or houses of ill fame, for the purpose of suppressing then in said city," etc. Acts 1857, p. 166. At that time there was in existence a general penal statute, operative throughout the state, making it a misdemeanor to keep open a tippling-house on the Sabbath day. Cobb, Dig. 815, § 221; Code, § 4535. Under an ordinance of the city of Augusta, which is set out in the reporter's statement, the defendant in error was tried and found guilty by the recorder's court upon the charge of "keeping open his bar on Sunday, July 19, 1891." The judgment discharging the defendant on habeas corpus involves the validity of the ordinance and the local statute above referred to. The question to be determined is whether the legislature had power to authorize the ordinance. Could the legislature authorize a municipal corporation to punish as an offense against the municipality an act punishable under a general law as an offense against the state?

There is no decision of this court in which the question has been directly adjudicated. Elsewhere it has frequently arisen, and has almost as frequently been decided in the affirmative. The following are cases in which the power is recognized or upheld: Mayor v. Rouse, 8 Ala. 515; Mayor v. Allaire, 14 Ala. 400; Town of Van Buren v. Wells, 53 Ark. 368, 14 S.W. 38; Hughes v. People, 8 Colo. 536, 9 P. 50: Wragg v. Penn Tp., 94 Ill. 11; Robbins v. People, 95 Ill. 175; Hankins v. People, 106 Ill. 629, 637; Levy v. State, 6 Ind. 281; Ambrose v. State, Id. 351; Williams v. Warsaw, 60 Ind. 457; Town of Bloom field v. Trimble, 54 Iowa 399, 6 N.W. 586; Rice v. State, 3 Kan. 145; March v. Com., 12 B. Mon. 25; Kemper v. Com., 85 Ky. 219, 3 S.W. 159; Shafer v. Mumma, 17 Md. 331; People v. Hanraban, 75 Mich. 611, 42 N.W. 1124; People v. Detroit Works, 82 Mich. 471, 46 N.W. 735; State v. Ludwing, 21 Minn. 202; State v. Lee, 29 Minn. 445, 13 N.W. 913; St. Louis v. Bentz, 11 Mo. 61; City of St. Louis v. Cafferatta, 24 Mo. 94: State v. Cowan; 29 Mo. 330; State v. Thornton, 37 Mo. 360; Ex parte Kiburge, 10 Mo.App. 442; City of Brownville v. Cooke, 4 Neb. 101; Hown v. Treasurer, 37 N. J. Law, 145; Wood v. City, 14 Barb. 428, 429; City of Brooklyn v. Toynbee, 31 Barb. 282; Polinsky v. People, 11 Hun, 390, 73 N.Y. 65; State v. Sly, 4 Or. 277; State v. Bergman, 6 Or. 341; Wong v. City of Astoria, 13 Or. 538, 11 P. 295; State v. Williams, 11 S.C. 288; Greenwood v. State, 6 Baxt. 567; State v. Taxing-Dist., 16 Lea, 240; Hamilton v. State, 3 Tex. App. 643; Exparte Douglass, 1 Utah 108. Except some early cases, which have been overruled, so far as they involve this question,-Slaughter v. People, 2 Doug. (Mich.) 334; City of Madison v. Hatcher, 8 Black. 344; Bogart v. Albany, 1 Ind. 38; and Schroder v. City Council, 3 Brev. 533, - we have found but one instance in which the power was denied,-In re Sic, 73 Cal. 142, 14 P. 405,-and there no adjudication on this point was necessary. Neither in that case, nor in others holding generally that the city could not punish for acts penal under general laws, does it appears that the legislature had attempted any express grant of the power. The question for decision was as to the validity of ordinances which, it seems, were without express legislative sanction. There is, of course, a wide distinction between cases where there is a clear and well-defined grant of authority as to a specified subject and those in which it is sought to infer authority from the "general welfare clause" usual in municipal charters. Of the latter class were Town of Washington v. Hammond, 76 N.C. 33; State v. Langston, 88 N.C. 692; and State v. Keith, 94 N.C. 933. That these cases are not to be construed as denying to the legislature power to authorize such ordinances, see State v. Brittain, 890 N.C. 574, where MERRIMON, J., in delivering the opinion of the court, says: "It may be that the legislature has power to authorize a town to make an offense against the state a separate offense against the town; but this could be done only by an express grant of authority." In City of New Orleans v. Miller, 7 La. Ann. 651, which is sometimes cited on this subject, it does not appear that any authority was granted as to the act in question; and in a recent case in the same state, ( State v. Labatut, 39 La. Ann. 513, 2 So. 550,) the legislative grant was sustained. The rules laid down in Dillon on Municipal Corporations (volume 1, 4th Ed., § 368) is as follows: "Where the act is, in its nature, one which constitutes two offenses,-one against the state, and one against the municipal government,-the latter may be constitutionally authorized to punish it, though it be also an offense under the state law; but the legislative intention that this may be done ought to be manifest and unmistakable, or the power in the corporation should be held not to exist." This we regard as a correct statement of the law.

In the Georgia cases cited as opposed to this power, it will be found that the ordinances held invalid were not shown to have been authorized by any express legislative grant. Mayor v. Hussey, 21 Ga. 80: Jenkins v. Mayor, 35 Ga 147; Vason v. City of Augusta, 38 Ga. 542; Reich v. State, 53 Ga. 73; Rothschild v. City of Darien, 69 Ga. 503. In the first of these cases. (Mayor v. Hussey,) it was held by a majority of the court, (BENNING, J., dissenting,) that a general power to pass such ordinances "as shall appear to them request for the security, welfare, and convenience of the city, and for preserving health, peace, and good government within the same," did not authorize the municipal authorities to legislate as to an offense covered by the state laws. Not only was there an absence of express authority from the legislature as to the offense in the question, but the prohibited act--harboring articled seamen--was not regarded as in its nature an offence against the city. So far from denying the power of the legislature to authorize an additional punishment where the act is of the nature. LUMPKIN, J., in delivering the opinion of the court, says: I might go further, and concede that where the state law defines an offense generally, and prescribes a punishment, without reference to the place where it is committed, in town or country, and the act, when committed in the streets and public places of the city, would be attended with circumstances of aggravation, such as an affray, for instance, the corporate authorities, with a view to suppress this special mischief, might probably provide against it by ordinance, because that ingredient or concomitant of the crime might not be supposed to be included in the state law." BENNING, J., in the same case, says: "I forbear to go into the question whether the legislature had not the power to authorize the mayor and aldermen to make such an ordinance as the one in question, because I do not know that either of the other members of the court denies to the legislate the power. I assume that the legislature had the power." In the remaining cases the question of legislative power is not discussed or passed upon. They decide merely as to the power of the city, and, of course, only as to its power under the facts in those cases, and are not to be construed as deciding that in no case a city exercise, or the legislature vest it with, the power in question. In Jenkins v. Mayor, supra, the holding is that "city authorities, under the usual grant of power contained in their charters, cannot by ordinance declare those acts offenses...