Thomas v. Yazoo City
| Decision Date | 29 March 1909 |
| Docket Number | 13,705 |
| Citation | 48 So. 821,95 Miss. 395 |
| Court | Mississippi Supreme Court |
| Parties | CICERO THOMAS v. YAZOO CITY |
FROM the circuit court of Yazoo county, HON. WILEY H. POTTER Judge.
Thomas appellant, was tried and convicted in the municipal court of Yazoo City for selling intoxicating liquors in violation of a city ordinance prohibiting such sales, and appealed to the circuit court. He was again tried and convicted in the circuit court and appealed to the supreme court.
The opinion sufficiently states the facts. Code 1906, § 1762, referred to in the briefs of counsel and in the opinion of the court, is as follows:
Barnett & Perrin, for appellant.
Yazoo City is operating under its own special municipal charter and has never adopted Code 1906, § 1762, in reference to allowing evidence of more than one sale of whiskey under affidavit charging a certain sale, hence the action of the court below in admitting evidence of more than one sale and in refusing to compel the city, after the admission of the evidence, to elect as to what specific sale it would seek to prove appellant guilty, must constitute such error as will reverse the judgment. It will be noted that the city on the trial in the circuit court, proved not only the sale relied on for conviction in the mayor's court, but also an additional sale made some six months before. The court charged the jury that if either sale had been proved beyond a reasonable doubt, then they were authorized to convict. This constituted error. Howard v. State, 83 Miss. 378; Hudson v. State, 73 Miss. 784.
The compilation of the ordinances of Yazoo City, known as "Holmes' Code," should not have been admitted in evidence as showing the municipal regulations and ordinances, because it did not contain any certificate of the city clerk as to its official character.
The charter of the city gave no authority to the city board to prohibit the sale of intoxicants within its limits. And, as shown above, Code 1906, § 1762, is not applicable. Hence appellant's conviction is not upheld by law, the charge being not for a violation of a state law, but being prosecuted solely by the city for alleged violation of its ordinance. The power to suppress all crime, obscenity profanity, drunkenness and other disorderly conduct, given to the city by section 20 of its charter does not authorize an entire prohibition of the sale of whiskey.
But for the enactment by the city of an ordinance prohibiting the sale of intoxicating liquors within the city boundaries no conviction could stand upon the affidavit made against appellant in the mayor's court, for the affidavit was made upon the supposed violation of the ordinance, and the punishment meted thereunder upon appellant is the punishment provided by the ordinance. Will this court hold that, by the adoption of an ordinance silent as to the matter in which conviction can be brought about, Code 1906, § 1762, can be read into it, in the face of the fact that the ordinance was adopted by a body whose powers are limited and in whose favor nothing can be presumed? The ordinance provides no method of procedure for inaugurating a prosecution against appellant.
Again, the punishment inflicted upon one convicted under the ordinance must be in accordance with the ordinance and not in accordance with the law of the state as set forth in our statutes. The punishment provided by the city ordinance is far in excess of the minimum punishment carried by the state law, hence the punishment is cruel and unusual.
The court below erred in charging the jury to convict if they should believe that either of the sales, as to which evidence had been offered, had been proved. Code 1906, § 1762, is but a rule of evidence. Hudson v. State, supra. If the municipal board had desired to gain the results which might accrue in favor of the city from Code 1906, § 1762, they should have seen to the adoption, in proper method, of an ordinance embodying its provisions.
Code 1906, § 1762, should not be held applicable to appellant's case for the reason that the code section in effect creates a rule of substantive law, and, since, the city has not adopted its provisions, appellant cannot be held liable thereunder in this case which had its inception under the affidavit filed in the mayor's court.
Holmes & Holmes, for appellee.
Under sections 26 and 28 of the charter of Yazoo City it is provided that all trials in the city court "shall be conducted according to the practice of the courts of common law, as modified by the statutes of this state," and also that "all appeals from the city court to the circuit court shall be subject to the same rules of proceedings, trial and judgment as are by law prescribed in the case of appeals from justices of the peace of said county to said circuit court." The preceding charter, section 22, provides that "the mayor shall have and exercise all of the power and jurisdiction of a justice of the peace." Moreover although the municipality is acting under its own charter, the principles of Code 1906, § 87, are applicable to appellant's, and similar, cases.
In answer to the contention of appellant that the compilation of municipal ordinances known as "Holmes' Code," should not have been admitted in evidence as it did not bear proper certificate of the city clerk as to its authenticity, we call the court's attention to the fact that any error as to this was cured by the admission of proof, through the testimony of the city clerk, and through his supplying the missing certificate, showing the authenticity.
By article 20 of the city's charter, providing that the city council shall have power to restrain, prohibit and suppress dramshops and other disorderly houses and to ordain all needful laws for preventing and suppressing all crime, drunkenness and disorderdy conduct, the city has ample power to prohibit the sale of intoxicating liquors within its limits. Corinth v. Crittenden, 94 Miss. 41, 47 So. 525.
Even if it be held that no method of procedure is provided by the ordinances of the city applicable to appellant's case, yet this will in no wise preclude the city from prosecuting this action against appellant. Telheard v. Bay St. Louis, 87 Miss. 580, 40 So. 326. The practice and procedure of the mayor's court were wisely regulated not only by the charter of the city but also by the enactments of our legislature in the general laws of the state which general laws apply without conflict with the municipal regulations. 15 Ency. Pl. & Pr. 417; People v. Cox, 76 N.Y. 47; Lexington v. Wise, 24 S.C. 163; McQuillan, Munic. Ordinances, 509.
In answer to the contention by appellant that the court below erred in admitting evidence to show more than one specific sale of intoxicants, we say that one who is convicted before a justice of the peace on the charge of selling intoxicants and who, appeals to the circuit court must be prepared to defend himself from proof of a sale of intoxicants made at any time within the two preceding years. The same rule applies where one is tried in the circuit court not on his appeal but on an indictment found by the grand jury against him. Then, why should not one who appeals from a city court on conviction of a charge of violating the municipal regulations as to sale of intoxicants within the city limits not also be required, on his trial in the circuit court, to submit to a similar rule? Hudson v. State, 73 Miss. 784, cited by opposing counsel, is not applicable. The instructions granted for the state on this subject were correct. State v. Rudy, 57 P. 263; Davis v. State, 32 S.E. 130.
Under the provisions of our state constitution, as set forth in Telheard v. Bay St Louis, 87 Miss. 580, Code 1906, § 1762, is applicable to trials of misdemeanors appealed from the mayor's court to the circuit court. Certainly, in those municipalities acting under their own charters, it is not necessary for the municipal authorities to adopt each separate section of the code in order that the same may apply within the city limits. Were such the case, the general rules of statutory proceduce of our code with regard to a defendant's testifying in his own behalf or with reference to a wife's testifying in her husband's favor, or with regard to examination of a witness as to his conviction of a crime, would be inapplicable, in trials of defendants for municpial offenses, in the municipal courts of such cities, unless proper ordinances with reference thereto had been adopted and placed in force before the dates of such trials.
George Butler, assistant attorney-general, on the same side.
It is vigorously contended by appellant that inasmuch as this is a prosecution for violation of a municipal ordinance of Yazoo City, which city has adopted no ordinance providing for the admission in evidence of proof of more than one sale of intoxicants on a charge of a specific sale within the city limits, and inasmuch as the city has not adopted Code 1906 § 1762, as applicable to its rules of legal procedure in such case, therefore, as a result, it was improper in the court below to admit evidence of two separate sales. This contention is incorrect, since,...
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