Moran v. City of Atlanta

• Decision Date: 03 March 1898
• Parties: MORAN v. CITY OF ATLANTA.
• Court: Georgia Supreme Court

30 S.E. 298

102 Ga. 840

MORAN v. CITY OF ATLANTA.

Supreme Court of Georgia

March 3, 1898

Syllabus by the Court.

1. A sale of spirituous liquors, although made upon the Sabbath day, may be, nevertheless, a violation of a statute making penal the sale of such liquors without a license.

2. A municipal corporation cannot, in the absence of express legislative authority so to do, enact a valid ordinance for the punishment of an act which constitutes an offense against a penal statute of this state. Such authority cannot be inferred from the "general welfare clause," usually found in municipal charters.

3. A section in the charter of a city declaring that the mayor and general council thereof "shall have full power and authority to regulate the retail of ardent spirits within the corporate limits of said city, and, at their discretion, to issue license to retail or to withhold the same, and to fix the price to be paid for license at any sum they may think proper, not exceeding two thousand dollars," does not confer upon the municipal authorities the power to enact an ordinance prohibiting and making penal the retailing of such liquors without license, the offense therein provided for being a misdemeanor, under section 431 of the Penal Code. (a) The last sentence in that section, which reads, "No person shall be liable to indictment in the superior courts for a violation of this section, when he has been tried by the corporate authorities for the same offense," has application only in cases where such corporate authorities have lawful jurisdiction over the offense.

4. The court erred in overruling the certiorari.

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

C. A Moran was convicted of an unlawful sale of liquors in the city of Atlanta, and, his petition for certiorari to the superior court having been refused, he brings error. Reversed.

R.J Jordan, for plaintiff in error.

J.A Anderson and J. T. Pendleton, for defendant in error.

FISH J.

Under an ordinance of the mayor and general council of the city of Atlanta, the plaintiff in error was tried, convicted, and sentenced by the recorder of that city upon the charge of "retailing spirituous and malt liquors without a license." His petition for certiorari having been overruled and dismissed by the judge of the superior court, he excepted, and brought the case, under a writ of error, to this court. The evidence in the case showed that the accused was a physician and druggist, and sold whisky in his drug store on a certain day, which was Sunday. His contention was, and is, that, if he was guilty of any offense at all, it was a state offense, and the municipal court had no jurisdiction in the matter.

1. The question was raised in argument before this court whether the offense of selling spirituous liquors without a license can be committed on Sunday. The act of selling spirituous liquors on Sunday is not, in and of itself, a distinct offense, under the criminal laws of this state. It is an offense to keep open a tippling house on the Sabbath day, and it is an offense for any one to "pursue his business, or the work of his ordinary calling, on the Lord's day, works of necessity or charity only excepted." So that under a license to sell spirituous liquors one would not be authorized to pursue such a business on the Sabbath day. Therefore it may be said that one cannot be licensed to sell, on Sunday, spirituous liquors. But the fact that a license to sell such liquors would not give the person to whom it was issued the right to sell them on the Sabbath day does not render it impossible to violate, on Sunday, the law against selling spirituous liquors without a license. If a person who has no license to sell spirituous liquors sells whisky on Sunday, he is certainly selling spirituous liquor without a license. The fact that he sells it on a day upon which he would not be authorized to sell, even if he had a license, makes no difference. Even if the law made special provision for the punishment of any one making a sale on Sunday, with or without a license, this would not render the statute prohibiting sales without a license inapplicable to sales made on Sunday. Black, Intox. Liq. p. 428; People v. Krank, 110 N.Y. 488, 18 N.E. 242. And one who had, by the same act, violated both the Sunday law and the license law, could not escape punishment for a violation of the latter statute simply by pleading and showing that the act which he had committed was a violation of the former. With as much reason he might claim freedom from prosecution for a violation of the Sunday statute because the act by which he violated it was also a violation of the law against selling without a license. People v. Krank, supra; O'Brien v. State, 91 Ala. 25, 8 So. 560.

2. The plaintiff in error contends that, if he committed any offense at all, it was a state offense, and therefore his trial for a violation of the city ordinance was illegal. In this connection the question whether the evidence shows that the accused violated the law of the state against keeping open a tippling house on the Sabbath day has been discussed in the argument of counsel, but we do not deem it necessary to consider it; for retailing spirituous liquors without a license "from the corporate authorities of any town or city, where, by law, authority to grant license is vested in such corporate authorities," is an offense under the criminal laws of the state. Pen. Code, § 431. Therefore the prosecution in the municipal court was for an act which the state has made criminal and for which it provides punishment. According to repeated adjudications of this court, a municipal corporation cannot, in the absence of express legislative authority to do so, enact a valid ordinance for the punishment of an act which constitutes an offense under a penal statute of the state. Savannah v. Hussey, 21 Ga. 80; Jenkins v. Thomasville, 35 Ga. 145; Vason v. Augusta, 38 Ga. 542; Reich v State, 53 Ga. 73; Rothschild v. Darien, 69 Ga. 503; Kahn v. Macon, 95 Ga. 419, 22 S.E. 641; Strauss v. Waycross, 97 Ga. 475, 25 S.E. 329; Keck v. Gainesville, 98 Ga. 423, 25 S.E. 559. Such authority is not conferred on the municipal authorities of the city of Atlanta by the first section of the act of 1874, establishing a new charter for that city, where "the inhabitants" of the territory incorporated are given "power to govern themselves by such...