Loeb v. Jennings

Citation67 S.E. 101,133 Ga. 796
PartiesLOEB v. JENNINGS. [d1]
Decision Date16 February 1910
CourtSupreme Court of Georgia

Syllabus by the Court.

The charter of the city of Atlanta and the ordinances passed under it gave authority to the recorder, upon conviction of a person charged with keeping spirituous, fermented, or malt liquors for illegal sale, to sentence him to pay a fine of $500, and also to work on the streets and public places of the city for 30 days.

Where duly authorized by the municipal charter and ordinances, a sentence by a recorder which requires the person convicted of a violation of a penal ordinance to work on the streets or other public works of a city is not void or illegal on the ground that it is violative of paragraph 9, § 1, art. 1, of the Constitution of this state (Civ. Code 1895, § 5706) which declares that excessive fines shall not be imposed, nor cruel and unusual punishments inflicted.

(a) It cannot be said, in view of the character of the offense committed, that the fine of $500 which was imposed was so excessive as to be unconstitutional.

The eighth amendment of the Constitution of the United States which provides that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted" (Civ. Code 1895, § 6021), refers to powers exercised by the government of the United States and not to those of the individual states.

A sentence imposed on one convicted of violating a municipal ordinance, which required him to pay a fine and also to work on the streets or other public places of the city, was not violative of the provisions contained in the fourteenth amendment of the Constitution of the United States (Civ. Code 1895, § 6030), that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, *** nor deny to any person within its jurisdiction the equal protection of the laws."

To punish such an offender by confining him at labor under municipal control is not obnoxious to the constitutional inhibition against involuntary servitude save as a punishment for crime after legal conviction therefor.

(a) Even if there were some acts of misconduct shown on the part of persons in charge of those convicted of violating municipal ordinances, the evidence was not such as to render the conviction or sentence illegal, or show that it was error on the part of the judge presiding at the hearing upon the return of the writ of habeas corpus to decline to discharge the applicant, who had been so convicted, from custody.

The provision of the Constitution of this state that "no person shall be deprived of life, liberty or property, except by due process of law" (Const. art. 1, § 1, par. 3) does not guarantee a trial by jury to one charged with the violation of a valid municipal ordinance; but he may be summarily tried and convicted, without a jury, in a police court having jurisdiction to try petty offenses against the peace, good order, and security of the municipality; and this is true, although, under such ordinance and the charter of the city, the offender is sentenced to pay a fine of $500 and also to work upon the streets or other public places of the city for 30 days.

Such a trial without a jury, and the sentence so imposed, are not violative of the provision of the Constitution of the United States (Amend. 14) which declares: "Nor shall any state deprive any person of life, liberty, or property without due process of law."

(Additional Syllabus by Editorial Staff.)

Under the express provisions of Civ. Code 1895, § 5588, and Acts 1896, p. 42, § 5, a decision of the Supreme Court rendered since January 1, 1897, concurred in by six justices, can only be reversed by a concurrence of all six.

Habeas corpus by Samuel Loeb against Henry Jennings. Questions certified from the Court of Appeals. Questions answered.

The Atlanta city charter, as amended in 1874, Acts 1874, p. 120, § 16, provides that the mayor and council may prescribe, by ordinance, penalties for offenses against the ordinances of the city, and to punish offenders by fines not exceeding $500 and imprisonment in the calaboose not exceeding 30 days, and may enforce payment of fines by compelling offenders to work on the streets or public works of the city, and may compel offenders sentenced to imprisonment in the calaboose to labor on the public works or streets, to be regulated by ordinance. An ordinance provided that, when any person was convicted of an offense against the ordinances of the city before the recorder, it should be discretionary with the court to punish him by ordering him to work on the streets or public works of the city, and another ordinance provided that a person keeping intoxicating liquor for unlawful sale, upon conviction, should be fined not exceeding $500, or imprisonment not exceeding 30 days, either or both, in the discretion of the court. Held that the recorder, upon conviction of a person for such offense, could levy a fine of $500 and sentence the offender to work on the streets and public places of the city for 30 days.

The Court of Appeals certified to this court the following questions:

"(1) Samuel Loeb was convicted in the recorder's court of the city of Atlanta for a violation of section 1537 of the City Code of Atlanta, which was adopted by the city council on June 21, 1886, and is in the following language: 'Any person, firm, or corporation who shall keep for unlawful sale in any store, house, room, office, cellar, stand, booth, stall or other place, or shall have contained for unlawful sale in any barrel, keg, demijohn, or other package, any spirituous, fermented, or malt liquors for such sale, shall, on conviction, be punished by fine not exceeding five hundred dollars, or imprisonment not exceeding thirty days, either or both, in the discretion of the court.' The sentence of the recorder was in the following language: 'It is ordered that said defendant pay a fine of $500 and costs and the said defendant also work on the streets and public places of said city 30 days.' Was authority to impose said sentence, and especially so much thereof as added the requirement that the defendant also work on the streets and public places of said city for 30 days, authorized by said ordinance, taken in connection with an act of the General Assembly of this state, passed in 1874, being an act to amend the charter of the city of Atlanta, in which the following language is contained: 'The mayor and general council shall have the power and authority to prescribe by ordinance adequate penalties for all offenses against the ordinances of said city, and to punish offenders by fines not exceeding five hundred ($500.00) dollars, and imprisonment in the calaboose not exceeding thirty days, for each offense; to enforce the payment of fines by compelling offenders, and those who fail or refuse to pay said fines, to work on the streets or public works of said city. They shall have power to compel offenders sentenced to imprisonment in the calaboose, as aforesaid, to labor on the public works or streets, to be regulated by ordinance'--the said council of Atlanta having passed an ordinance in pursuance of said amendment of the charter in the following language, to wit: 'Sec. 1771. When any person is convicted of an offense against the laws and ordinances of the city, before the recorder, mayor, or mayor pro tem., or other presiding officer, it shall be discretionary with the court to punish such offenders by ordering them to work on the streets or public works of the city, under the supervision of the proper officer; and payment of all fines, not otherwise paid, may be enforced by work as aforesaid.'
"(2) Is said sentence, especially in so far as it requires that the defendant shall work on the streets or other public works of the city, void or illegal because it is violative of paragraph 9 of section 1 of article 1 of the Constitution of the State of Georgia, as codified in section 5706 of the Civil Code, which provides that excessive fines shall not be imposed, nor cruel and unusual punishments inflicted; or because it is violative of that provision of the Constitution of the United States, codified in section 6021 of the Civil Code, to the same effect; or because it was imposed by the recorder without the right on the part of the defendant to a jury trial; or because it is a sentence which involves involuntary servitude without a trial by jury; or because it is violative of that provision of the Constitution of the United States which is contained in section 6030 of the Civil Code, which provides that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws?
"(3) Where a defendant has been convicted and sentenced as stated above, and it appears that he was being held in confinement in the city stockade of the city for the purpose of enforcing that portion of the sentence which requires work on the streets and public places of the city, and under the evidence submitted on the issue before the court as to the legality of this confinement it appears that the prisoners convicted, and held to labor by the city, were sent out to the stockade in a van or wagon latticed with iron bars and with a lock on the door to prevent them from escaping; that when they arrived at the stockade they were carried into the prison, where, in the discretion of the stockade authorities, he was shackled with a chain, the shackle being put on with an iron ring about one-fourth of an inch in diameter, fastened on each
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