Jenkins v. Jones

• Decision Date: 13 April 1953
• Docket Number: No. 18150,18150
• Citation: 209 Ga. 758,75 S.E.2d 815
• Parties: JENKINS, Chief of Police, etc. v. JONES.
• Court: Georgia Supreme Court

Page 815

75 S.E.2d 815

209 Ga. 758

JENKINS, Chief of Police, etc. v. JONES.

No. 18150.

Supreme Court of Georgia.

April 13, 1953.

Rehearing Denied May 13, 1953.

Syllabus by the Court.

1. A municipal ordinance penalizing an act made penal by existing State law covering the same subject matter must yield to the State law.

2. An ordinance making the operation of a motor vehicle on the streets of the municipality while under the influence of intoxicating liquors a municipal offense, punishable by fine and imprisonment, violates art. 1, sec. 4, par. 1 of the State Constitution, there being an existing law of general operation, Code Ann.Supp. § 68-307, which covers the same subject matter.

Arnold E. Jones, on his petition for the writ of habeas corpus, was, upon a hearing thereof, discharged from the custody of Herbert Jenkins, Chief of Police of Atlanta. To this order the respondent filed a bill of exceptions.

The undisputed facts before the trial judge were: The petitioner was being held by the respondent on a charge of violating an ordinance of the City of Atlanta, adopted in 1953, which made it a municipal offense to 'operate a motor vehicle of any kind upon any public street or alley in the City of Atlanta while under the influence of intoxicating liquors or drugs,' which ordinance provided that one guilty of its violation was subject to a fine of not exceeding $500, and a sentence to work on the public works or streets not to exceed 60 days, any or all of these penalties in the discretion of the trial judge. The petitioner contended that his restraint was illegal, because the ordinance he was charged with violating was unconstitutional, null, and void, in that (a) it was a special law for which provision had been made by an existing general law, Code Ann.Supp. § 68-307, wherein the operation of a motor vehicle on any street or highway of this State while under the influence of intoxicating liquors or drugs is declared to be a misdemeanor, and therefore said ordinance violated art. 1, sec. 4, par. 1 of the Constitution of Georgia, Code Ann. § 2-401; and (b) the ordinance violated the due-process clause of the State Constitution, art. 1, § 1, par. 3, Code Ann. § 2-103.

J. C. Savage, J. C. Murphy, J. M. B. Bloodworth, John E. Feagin and Henry L. Bowden, Atlanta, for plaintiff in error.

G. Fred Kelley, Frank Grizzard, Frank A. Bowers, Paul Webb, Solicitor-General, and Norman H. Fudge, Atlanta, for defendant in error.

ALMAND, Justice.

1. Code, § 68-307, which makes it a misdemeanor to operate a motor vehicle on the streets and highways of Georgia while under the influence of intoxicating liquors, or drugs, has been a law of general operation since 1910. Ga.L.1910, pp. 90, 93; Id. 1927, pp. 226, 238; 1947, p. 230. The municipal ordinance here under consideration deals with the same subject matter, viz., operating a motor vehicle on the highways or streets in the City of Atlanta while under the influence of intoxicating liquors or drugs, and does not introduce any ingredient or concomitant essential to the preservation of the city's peace, health, or good order which is not included in Code, § 68-307. Where a municipal ordinance and a public criminal statute operate upon the same state of physical acts, the ordinance is invalid unless the offense created thereby contains some characterizing ingredient not contained in the State offense. Aycock v. Town of Rutledge, 104 Ga. 533(1), 30 S.E. 815; Papworth v. City of Fitzgerald, 106 Ga. 378, 32 S.E. 363. A municipal ordinance punishing an act made penal by a State law then existing, covering the same subject matter, must yield to the State law. Lanford v. Alfriend, 147 Ga. 799(1), 95 S.E. 688. 'Where both the ordinance and the state law exist, covering the same act and same offense, the offender cannot be put in jeopardy twice for the same offense under the ordinance and under the state law. In such case he could only be punished for a violation of the state law.' Mayo v. Williams, 146 Ga. 650, 652, 92 S.E. 59, 60.

The respondent contends that the power of the City of Atlanta to enact the ordinance here involved is specifically authorized by Code, § 68-312, a general law, and that, under the rulings of this court in Hood v. Von Glahn, 88 Ga. 405(1), 14 S.E. 564, Littlejohn v. Stells, 123 Ga. 427(1), 51 S.E. 390, and Lanford v. Alfriend, 147 Ga. 799, 95 S.E. 688, supra, the city, by virtue of Code, § 68-312, had authority to enact this ordinance, though the identical offense is penalized under a general law of this State. The cases cited in substance hold that the General Assembly may by express enactment authorize a municipality to provide by ordinance for the punishment of an act which in its nature affects the health, peace, and good order of the community, notwithstanding such an act has already been made penal under a general law of the State. Whether these rulings are sound, or in conflict with other decisions of this court--such as Aycock v. Town of Rutledge, Papworth v. Fitzgerald, and Mayo v. Williams, all supra; and Mayor, etc., of Savannah v. Hussey, 21 Ga. 80, 68 Am.Dec. 452, Snipe v. Dixon, 147 Ga. 285, 93 S.E. 399, Smith v. Chapman, 166 Ga. 479, 143 S.E. 422, and Marshall v. City of Griffin, 173 Ga. 782, 161 S.E. 622, which hold that a municipal corporation has no power to enact an ordinance providing for the punishment of an offense made penal by the laws of the State--need not be passed upon in this case, for the reason that Code, § 68-312 does not grant express authority to enact the ordinance under review; and even if it be conceded that the rulings in the cases relied upon are correct, the respondent can derive no benefit from these decisions. Code, § 68-312 is a codification of section 19 of the act of 1927, Ga.L.1927, pp. 226, 240. Section 68-307, which penalizes operating a motor vehicle while under the influence of liquors or drugs, is a codification of section 13 of the same act. The first part of § 68-312 purports in general terms to grant authority to a municipality to regulate the running and operation of motor vehicles therein, and then, as a part of the same sentence, states that nothing in these motor vehicle statutes shall prevent a municipality from regulating, by reasonable ordinance, speed, cut-outs, and headlights, or requiring owners of motor vehicles to register the numbers of the State licenses with designated city officers. There is no reference in this section to operating motor behicles while under the influence of liquors or drugs, nor is any authority therein granted to make penal the running and operation of a motor vehicle also made penal by a State statute. Ejusdem generis is a rule of construction to ascertain and give effect to legislative intent. Where general words are followed by a description of specified subjects, the meaning of the general words ordinarily will be presumed to be limited to the enumerated special subjects, and to include only those things of the same nature as those specially enumerated, unless a clear manifestation of a contrary intent appears from the statute. Beavers v. Le Sueur, 188 Ga. 393, 403, 3 S.E.2d 667; Gilmore v. Gilmore, 201 Ga. 770, 777, 41 S.E.2d 229; 14 Words & Phrases, Ejusdem Generis, 197, 212. In our opinion, it was not the intent of the General Assembly to confer upon the municipalities of this State the authority to enact ordinances making it a penal offense to operate a motor vehicle on the streets of the municipalities while under the influence of liquors or drugs, there being a general law of force in the State making such operation a penal offense. If a municipality, under the general terms of Code, § 68-312, has authority to enact the ordinance in question, then, under a general law authorizing it to enact ordinances concerning the misappropriation of personal property, illicit relations between the sexes, and injury to property, a municipality could enact penal ordinances as to simple larceny, fornication and adultery, or assault and battery and malicious mischief, all of which are misdemeanor offenses under the general laws of the State. Surely, the General Assembly did not intend to authorize the City of Atlanta to enact an ordinance that would lead to unjust and unequal enforcement of the law. With both a State statute and a municipal ordinance making driving a motor vehicle on a public road while intoxicated a penal offense, A, while driving a motor vehicle within the limits of the City of Atlanta, could be arrested by an officer, tried before the city recorder without a jury, and be fined a sum not exceeding $500 and sentenced to work on the streets or public works of the city for not exceeding sixty days. If A had been arrested by the officer while driving outside the city limits, in Fulton County, he could be charged with violating the State statute and tried before a court having jurisdiction to try the State offense, with the right of trial by a jury, and upon his conviction, be subject to punishment by a sentence to twelve months on the public works, six months imprisonment in jail, and a fine not exceeding $1000. Code, § 27-2506. Clearly, the General Assembly did not intend such an incongruous result from the enactment of what is now § 68-312 of the Code. The amount of punishment for a violation of the criminal law should not depend upon the place where the law was violated. Where A and B are charged with the same criminal offense, but A, because of the place of his arrest, is subject to a greater punishment than B, this result does not conform to the principle of equal justice under the law.

In Moran v. City of Atlanta, 102 Ga. 840, 30 S.E. 298, the defendant was charged with selling liquor without a license, in violation of a city ordinance. At that time there was a State statute in force making the selling of liquor without a license a misdemeanor. Though the legislature had granted authority to regulate the sale of ardent spirits within...