Moore v. Mayor

• Decision Date: 29 May 1899
• Citation: 107 Ga. 704,33 S.E. 435
• Parties: MOORE. v. MAYOR, ETC., OF TOWN OF JONESBORO.
• Court: Georgia Supreme Court

33 S.E. 435

107 Ga. 704

MOORE.

v.MAYOR, ETC., OF TOWN OF JONESBORO.

Supreme Court of Georgia.

May 29, 1899.

JUDICIAL NOTICE—CITY ORDINANCE—FAILURE TO WORK STREETS—TENDER OF STREET TAX.

1. Unless expressly directed by statute, neither this court nor the superior court can take judicial cognizance of a municipal ordinance; hence an exception to a judgment rendered by a municipal court, which alleges in general terms that the judgment is contrary to law (the point intended to be made being that the judgment was contrary to an alleged ordinance), cannot be considered, when the ordinance in question does not appear in the record.

2. After failure to perform a public duty, to which failure a penalty is attached, it is not competent for a defaulter to acquit himself of the default by tendering a sum of money, the payment of which is fixed by law as the alternative of such performance. He must, in the first instance, perform the work required, or make payment of such sum. The penalty attaches on his failure to do the one or the other when lawfully required, (a) The evidence in the municipal court wan anted the conviction of the accused of the offense charged, viz. a default in working the streets.

(Syllabus by the Court.)

Error from superior court, Clayton county; J. S. Candler, Judge.

Charley Moore was fined for failure to pay street tax in the town of Jonesboro. Certiorari was dismissed, and he brings error. Affirmed.

J. B. Hutcheson, for plaintiff in error.

W. L. Watterson, for defendant in error.

LITTLE, J. By his petition for certiorari, the plaintiff in error makes it appear that he was tried in the mayor's court for the town of Jonesboro for failure to pay his street tax to said town, and was fined in the sum of four dollars, to be discharged by eight days' work on the public streets of that town. After his conviction, he appealed to the council of the town, and the judgment of the mayor was sustained. He presented a petition for certiorari to the judge of the superior court. On the hearing the certiorari was dismissed, and to that ruling he excepted. From the answer of the mayor and council made to the writ of certiorari, it appears that on July 9th the plaintiff in error was summoned to work on the streets of the town; that he appeared in answer to the summons, and worked a half day, and did not reappear for the prosecution of the work; that a case was made against him, as he was in default for 1 1/2 days' work, or the payment of the sum of 75 cents in lieu of such work. On the next day the plaintiff in error came and tendered the sum of 75 cents, which was refused, on the ground that a case had already been made against him as a defaulter. On the trial before the mayor, the plaintiff in error alleged that he was sick, and not able to work, and that, on the morning afterwards, he carried the money to an officer of the town, who refused to accept the same.

1. It was submitted on the argument here that the ordinance of the town of...