Meaher v. Mayor & Aldermen of Chattanooga

• Decision Date: 30 September 1858
• Citation: 38 Tenn. 74
• Parties: WILLIAM MEAHER v. MAYOR AND ALDERMEN OF CHATTANOOGA.
• Court: Tennessee Supreme Court

38 Tenn. 74

WILLIAM MEAHER

v.MAYOR AND ALDERMEN OF CHATTANOOGA.

Supreme Court of Tennessee.

September Term, 1858.

FROM HAMILTON.

The complainant in error was fined by the recorder of Chattanooga for a violation of a town ordinance. He brought the matter by writ of certiorari before the Circuit Court of Hamilton county. The court rendered judgment dismissing the petition, from which petitioner appealed in error.

Burch and Mitchell, for plaintiff in error; Welcker and Key, for the defendant in error.

Caruthers, J., delivered the opinion of the court.

The recorder of the city of Chattanooga issued a warrant in debt against Meaher for fifty dollars, which, as stated in the warrant, he owes “in consequence of a forfeiture, or penalty, incurred for a misdemeanor for keeping a disorderly house in the city of Chattanooga, contrary to the provisions of the 10th section of an act passed by the mayor and aldermen 7th January, 1852.”

The 10th section referred to creates the misdemeanor, and the 14th section of the same ordinance prescribes the penalty, thus: “Whoever shall be convicted of a misdemeanor, under any of the provisions of this ordinance, shall forfeit and pay to this city a sum of not less than three nor more than fifty dollars.”

Judgment was given by the recorder against the defendant for $20, and the case was taken to the Circuit Court, by certiorari, where the same was dismissed, and is brought here by writ of error. Upon the facts stated in the petition, the following questions are made and argued:

1. It is contended that the action for the forfeiture would not lie until a conviction was first had for the misdemeanor. We think two proceedings unnecessary. To sustain the action for the penalty it would be indispensable to prove the offence stated in the warrant. There was no penalty to be recovered if the misdemeanor did not exist. As a part of the case--the very foundation of it--the offence would have to be made out before the recorder. How could there be a separate proceeding? There was no power to indict--the city can only operate by fines, forfeitures and penalties, and then to be recovered by warrant. If the fine, forfeiture, or penalty--for the name is not so material-- is fixed by the ordinance, for any particular thing, that may be recovered by warrant, and the only proof required is, that the offence, or act to which such fine or forfeiture is attached, has been committed. Debt is the proper action for penalties...