Van Buren v. Wells

• Citation: 14 S.W. 38,53 Ark. 368
• Parties: VAN BUREN v. WELLS. VAN BUREN v. WRIGHT. CASSIDY v. TEXARKANA
• Decision Date: 07 June 1890
• Court: Arkansas Supreme Court

14 S.W. 38

53 Ark. 368

VAN BUREN v. WELLS.

VAN BUREN v. WRIGHT.

CASSIDY v. TEXARKANA

Supreme Court of Arkansas

June 7, 1890

APPEALS from Crawford Circuit, H. F. THOMASON, Judge.

No. 3.

APPEAL from Miller Circuit Court, C. E. MITCHEL, Judge.

Nimrod Turman for appellant in the Wells case.

1. The town had a right to pass the ordinance. Mansf. Dig., sec 764. The general welfare clause extends to prohibiting the carrying of concealed weapons. 84 Mo. 204.

It is necessary to use general terms to confer powers not specifically enumerated. 8 S.W. 791. See also 37 Ark. 364.

The ordinance is cumulative, but not inconsistent with the State laws. 8 S.W. 791; 4 Neb. 101; Bish., St. Cr., sec. 24; Cooley, Const. Lim., 199, and citations below.

2. A prosecution under either the statutes or ordinance is not a bar to proceedings under the other. 8 Ala. 515; 14 Ala. 400; 1 Dak., 108; 94 Ill. 11; 12 Ind. 582; 60 Ind. 457; 17 Md 331; 27 Minn. 445; 21 Minn. 202; 13 Wend. 341; 4 Ore., 277; 6 Ore., 341; 6 Baxt., 567; 16 Lea, 240; 3 Tex. App., 643; 1 Utah 108; 2 Cranch, C. C. 148; 3 Cranch, C. C., 656.

And, in the Van Buren v. Wright case, for appellant.

1. It is not necessary that the records show the publication of ordinances; it may be shown by parol. 62 Iowa 32; 50 Ill. 39. The burden to show that the ordinance had not been published was on the defendant. Mansf. Dig., sec. 773.

2. The same act may constitute two separate offenses, one against the State, and the other against the corporation. A conviction of one does not bar the other. See cases cited supra in the Wells case.

3. See further: 30 Ala. 540; 47 N. J., 285; 50 Ill. 39; 58 Wis. 144; 1 Wend. 260; 34 Ark. 303; 81 Ill. 108; 54 Mo. 17; 89 Mo. 44.

Wells pro se.

Under our laws the mayor has the power and authority of a justice of the peace, and, in trying cases defined and punished by the statutes of the State, he acts and is a justice of the peace. Mansf. Dig., secs. 797, 800; Hempst., 201.

When the statute has provided for the punishment of an offense before a municipal government can provide for punishing the same act, the power must be expressly given. No express power is given to punish the carrying of concealed weapons, unless it be under the general welfare clause. Mansf. Dig., sec. 764. Such power must be expressly given, and cannot be implied or inferred from the general welfare clause. 4 A. & E. Corp. Cases, 353; 7 A. & E. Corp. Cases, 654; 73 Cal. 142; 82 Ind. 175; 42 Ark. 461; 34 Am. Dec., 625 and note; Horr. and Bemis on Mun. Ord., sec. 89; 10 Abb., Pr. Rep., 205; 45 Ohio St. 118; 108 U.S. 110; 23 How. (U. S.), 435.

Powers are construed strictly, and any doubt is resolved against the corporation. 9 Am. St. Rep., 375; 23 Am. Rep., 502; Horr. and Bemis, Mun. Ord., sec. 125; Endl. on Int. Stat., 352; Sedg. on St., 400; 45 Ark. 336, 454; 1 Dill. on Mun. Corp. (3d ed.), secs. 361, 368.

Such ordinances must be consistent with the laws of the State. Horr. and Bemis on Mun. Ord., sec. 88, page 75; 73 Cal. 142; 1 Dill. on Mun. Corp. (3d ed.), secs. 366, 367-8; Const., art, 12, sec. 4; Mansf. Dig., secs. 749, 764.

Judgment reversed and affirmed.

Scott & Jones for Cassidy, appellant.

The State having a law covering this identical offense, there is no power under the law expressly given, whereby a city can, by ordinance, declare the same to be an offense. Mansf. Dig., secs. 1887-8; Hempst., 201. See also 1 Dillon on Mun. Corp. (2d ed.), sec. 302; 35 Ga. 145; 7 La. An., 651; 2 Doug. (Mich.), 334; 9 Mo. 692; 29 Mo. 330.

OPINION

BATTLE, J.

In the first case the facts are as follows: Wells was accused and convicted, before a justice of the peace of Crawford county, of carrying a pocket pistol concealed about his person within the corporate limits of the town of Van Buren in said county and in this State. At the time this offense was committed, there was in full force and effect an ordinance of the town of Van Buren prohibiting the carrying of such pistols and imposing a fine on every person violating the same. After conviction in the justice's court, he was accused before the mayor of the town of violating this ordinance by the same act of which he was convicted, and for such violation was arrested and carried before the mayor. In the mayor's court he pleaded his former conviction and was tried and convicted. He appealed to the circuit court where his plea of former conviction was sustained, and he was discharged; and the plaintiff appealed to this court.

In the second case Frank Wright was accused and convicted in the court of the mayor of the town of Van Buren of a violation of an ordinance of said town by "disturbing the peace by fighting and attempting to fight, and by boisterous and obstreperous conduct and carriage and by using profane language. " He appealed to the circuit court, and there he demurred to the charge, because, first, the records of the town of Van Buren do not show that the ordinance violated was published as required by law; and second, because it imposes a fine on persons for acts declared and made criminal by the statute of the State. The court sustained the demurrer and discharged the defendant, and plaintiff appealed.

In the last case, Mike Cassidy was accused and convicted before the mayor of the city of Texarkana in Miller county in this State of keeping his saloon open on the Sabbath and retailing wines and liquors on that day, in violation of a city ordinance. He appealed to the circuit court, was again convicted and then appealed to this court.

The acts of which the defendants in the first and third cases were accused, and a part of those with which the defendant in the second case was charged, are made penal by the statutes of this State. It may be conceded that they were made criminal before any of the ordinances prohibiting them were passed. Did the town or city councils that enacted the ordinances have the authority to pass them? The only authority which can rightfully be claimed for their enactment is section 764 of Mansfield's Digest. This section provides: "Municipal corporations shall have power to make and publish, from time to time, by-laws or ordinances, not inconsistent with the laws of the State, for carrying into effect or discharging the power or duties conferred by the pro visions of this act, and it is hereby made the duty of the municipal corporation to publish such by-laws and ordinances as shall be necessary to secure such corporations and their inhabitants against injuries by fire, thieves, robbers, burglars and other persons violating the public peace; for the suppression of riots and gambling and indecent and disorderly conduct; for the punishment of all lewd and lascivious behavior in the streets and other places; and they shall have power to make and publish such by-laws and ordinances, not inconsistent with the laws of this State, as to them shall seem necessary to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of such corporations and the inhabitants thereof." Its language is sufficiently comprehensive to delegate the authority. But many courts have held that a municipal corporation can only pass ordinances punishing the same acts which are punishable under the general laws of the State, when expressly authorized to do so, and that no such authority will be presumed from a grant of power general in its nature. If this be true, it must be because the effect of such ordinances is to supersede the general laws upon the same subject. We cannot see any good reason why such authority, fitting and proper to be delegated to a municipal corporation, and plainly conferred in general terms, cannot be exercised by the municipality, unless it be because it is inconsistent with the general laws. That is the effect of the authorities which hold it cannot be. Many of them say that the effect of such ordinances, if enforced, would be to oust the State of jurisdiction, or make the same offense punishable twice, once by the State and once by the corporation, contrary to the constitution, and, therefore, they are invalid. In re Sic., 73 Cal. 142, 14 P. 405; Jenkins v. Thomasville, 35 Ga. 145; Mayor v. Hussey, 21 Ga. 80; Adams v. Albany, 29 Ga. 56; Vason v. Augusta, 38 Ga. 542; Reich v. State, 53 Ga. 73; Foster v. Brown, 55 Iowa 686, 8 N.W. 654; Washington v. Hammond, 76 N.C. 33; State v. Langston, 88 N.C. 692; State v. Brittain, 89 N.C. 574; State v. Keith, 94 N.C. 933; Ex Parte Smith, Hempst., 201; Ex Parte Bourgeois, 60 Miss. 663; S.C. 7 Am. & Eng. C. C., 654.

But we do not think the ordinances in question are invalid because they make offenses twice punishable. Municipal corporations "are bodies politic and corporate, vested with political and legislative powers for the local civil government and police regulations of the inhabitants of the particular districts included in the boundaries of the corporations." In some respects they are local governments established by law to assist in the civil government of the country. They are founded, in part, upon the idea that the needs of the localities for which they are organized, "by reason of the density of population or other circumstances, are more extensive and urgent than those of the general public in the same particulars." Many acts are often far more injurious, while the temptation to do them are much greater, in such localities than in the State generally. When done in such localities they are not only wrongs to the public at large, but are additional wrongs to the corporations. To suppress them when it can be done, and when there is a failure to do so, to punish the guilty parties, in many cases, form a part of the duties of such corporations. Many of them can and ought to be...