Littlejohn v. Stells

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

51 S.E. 390

123 Ga. 427

LITTLEJOHN v. STELLS.

Supreme Court of Georgia

June 17, 1905

Syllabus by the Court.

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.

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.

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.

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.

Error from Superior Court, Cobb County; Geo. F. 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.

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 to pass a general law on the subject still exists. The General Assembly cannot delegate to a municipality the authority to punish in a municipal court a state offense as such. Grant v. Camp, 105 Ga. 428, 31 S.E. 429. But it may authorize the punishment of an act as a city offense which would also be a state offense, provided the terms of the act conferring the authority are clear and unequivocal, and manifest a legislative intent to confer authority for the punishment of such act. Hood v. Von Glahn, supra. The sale of liquor is prohibited in the county of Cobb. Hence a sale on Sunday, as well as other days, would be a violation of the state law, and the authorities of the city of Marietta would have no power to provide for the punishment of one making such a sale on Sunday, in the absence of express legislative authority. The act of 1903, under which it is claimed that this authority is conferred, is a law general in its terms, and purports to confer authority upon each city in this state, and it is manifest from the language of the act that there was a legislative intent to authorize the corporate authorities of the various cities in this state to provide for the punishment of the act of selling liquor on Sunday. "The act of selling spirituous liquors on Sunday is not, under all circumstances, in and of itself, a distinct offense under the criminal laws of this state." Moran v. Atlanta, supra. The act of selling liquor at any time is,...