Hewitt v. City of Fitzgerald ( 1898 )

Fish, J.

From the petition for certiorari, it appears that the plaintiff in error was tried, in the recorder’s court of the City of Fitzgerald, “for not posting his occupation license in his place of business,” the prosecution being based upon section 13 of ordinance 6 of that city. That section is in the following words: “Each license shall be in the name of the person, firm, or agent to whom the same is issued, and each tax levied by this ordinance shall be a registered tax, due and payable on the first day of February, 1897, except as hereinafter provided, and the license issued thereunder shall expire on the first day of January, 1898. Each license shall he posted conspicuously at or in the place of business of the person, firm, or corporation taking out the same. For failure to comply with this section the offender shall be summoned before the recorder, and on conviction be fined in a sum not exceeding $50.00, or, in lieu thereof, imprisonment in the city prison for a term not exceeding thirty days.” It will be seen that the latter clause of this section is the one which the accused was charged with having violated. It will be observed, also, that the ordinance requires the license to be “posted conspicuously at or in the place of business of the person, firm, or corporation taking out the same.” A violation of the ordinance, then, consists in a failure to conspicuously post the license at or in the place of business of the person, firm, or corporation taking out the same. A penal statute or ordinance is to be construed strictly. The ordinance does not provide punishment for the mere failure of a person carrying on business to post the license required by the city in his place of business; but the punishment is to be meted out for a failure to post such license at or in the place of business of the person, firm, or corporation taking out the same. There must be, first, a taking out of a license by a person, firm, or corporation, and, next, a failure to conspicuously post this license at or in the place of business of such person, firm, or corporation. Therefore, there can be no violation of this requirement of the ordinance before a license is taken out. In this connection see Brown v. State, ante, 525. The only witness introduced upon the trial of the case was the chief of police, who testified, “that defendant did not have his license posted in his place of business, because defendant had not taken out a license from the city.” Not having taken out a license, he could not be guilty of the offense with which he was charged, under the provisions of the ordinance in question. The prosecution, therefore, failed to make out its case; and for this reason the judge below should have sanctioned the petition for certiorari, one ground of which was that the conviction of the petitioner was contrary to the law and the evidence.

Judgment reversed.

All the Justices concurring.