Littlejohn v. Steles

• Decision Date: 17 June 1905
• Citation: 123 Ga. 427,51 S.E. 390
• Parties: LITTLEJOHN. v. STELES.
• Court: Georgia Supreme Court

123 Ga. 427

51 S.E. 390

LITTLEJOHN.

v.STELES.

Supreme Court of Georgia.

June 17, 1905.

1. Criminal Law—Punishment of Crime-Statute Law—Ordinances.

The General Assembly may, by express enactment, authorize the corporate authorities of municipalities 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 that such an act has already been made penal under the general law of the state.

[Ed. Note.—For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 1312.]

2. Same — Violation of Ordinance — Jury Trial.

An ordinance passed in pursuance of such authority does not provide for the punishment of an offense against the laws of the state, and one arraigned in a municipal court for a violation of such ordinance is not entitled to a trial by jury.

3. Intoxicating Liquors — Illegal Sale— Punishment.

The act of 1903 (Acts 1903, p. 96) which confers upon the corporate authorities of the cities of this state the power to provide by ordinance for the punishment of selling liquor on Sunday limits the punishment to be inflicted to fine and imprisonment. A sentence under an ordinance passed under the authority of such act, providing that the accused shall work upon the city chain gang, is without authority.

4. Habeas Corpus—Illegal Sentence—Procedure.

Direction is given that the applicant be taken from the city chain gang and carried before the mayor's court of the city in order that a legal sentence may be imposed upon him.

(Syllabus by the Court.)

Error from Superior Court, Cobb County; Geo. P. Gaber, Judge.

Application of Tom Littlejohn for writ of habeas corpus to James Stells. From an order denying the writ, petitioner brings error. Affirmed, with direction.

Littlejohn applied for a writ of habeas corpus to be directed to Stells, alleging that the latter was holding him in custody in violation of law. At the hearing it appeared that the applicant had been arraigned in the police court of the city of Marietta charged with selling liquor on Sunday, in violation of an ordinance of which the following is a copy: "Be it ordained by the city council of Marietta that from and after the passage of this ordinance it shall be unlawful for any person to sell in any quantity, directly or indirectly, any spirituous, malt, vinous or intoxicating liquors of any character within the corporate limits of the city of Marietta from twelve o'clock on Saturday night until twelve o'clock on Sunday night. Any person violating this ordinance, upon conviction thereof shall be fined by the mayor not ex ceeding $300, or imprisonment not longer than three months, or both at the discretion of the mayor." This ordinance was adopted in pursuance of authority conferred in an act approved August 15, 1903 (Acts 1903, p. 96), of which the following is a copy: "Be it enacted by the General Assembly of Georgia, that from and after the passage of this act it shall and may be lawful for the corporate authorities of each city in this state to pass ordinances prohibiting any person within the corporate or jurisdictional limits of such city from selling in any quantity, directly or indirectly, any spirituous, vinous, malt or intoxicating liquors of any character, from 12 o'clock Saturday night to 12 o'clock Sunday night, and the corporate authorities of such cities are further empowered in such ordinances to provide that any person or persons violating any of the provisions of such ordinances shall, on conviction thereof before the police court of such city, whether known as mayor's or recorder's court, or otherwise designated, be subject and liable, as punishment for each and every such offense, to a fine of not more than $300 and to imprisonment not exceeding three months, either or both, at the discretion of the officer presiding in such police or other municipal court; and to further provide in such ordinances, that the aforesaid penalties shall not affect the power of the mayor or corporate authorities of such city to revoke the license of any barroom or tippling house." The validity of both act and ordinance was attacked upon various grounds. The judge remanded the applicant to the custody of the respondent, and the applicant excepted.

H. B. Moss, for plaintiff in error.

D. W. Blair and J. E. Mozley, for defendant in error.

COBB, J. It Is well settled that a municipal corporation cannot by ordinance provide for the punishment of an act which constitutes a criminal offense under the general law of the state, in the absence of express legislative authority conferring this power upon the municipality. Moran v. Atlanta, 102 Ga. 840, 30 S. E. 298. Prior to the adoption of the present Constitution the General Assembly could confer this power upon municipalities either by general or special law. Hood v. Von Glahn, 88 Ga. 405, 14 S. E. 564. The present Constitution prohibits the General Assembly from passing special laws upon this subject. Aycock v. Rutledge, 104 Ga. 533, 30 S. E. 815. But the power...