Adams v. Mayor of Albany , 29 Ga. 56 ( 1859 )

— Stephens, J.

By the Court

delivering the opinion.

[1.] Was the ordinance a valid one ? The authority fosit must be derived from the charter of the .city, either the original or amended charter. The only clause in the old charter, claimed as conferring the power to pass this ordinance, is the one conferring power in general terms, to pass all by-laws, ordinances, &c., not inconsistent with the Constitution and State laws. But this ordinance is inconsistent with a State law A statute declares in effect that every citizen may sell liquor to white people in quantities of a quart or more, with but one single restriction, and that is if he sells less than a gallon he must first take an oath not to sell to negroes. This is the result of the statute. It is not a case where State law is silent. The State has spolsen. The result is a clear declaration by State law, that the liquor maybe sold to be drank anywhere. The city speaks, and says it shall not be sold to be drank on the premises. The one says it may, the other says it shall not. The two cannot stand together, and that is the test of inconsistency.

[2.] Then does the amended charter confer the power to pass this ordinance? A careful examination of it shows that, with the single exception of taxes, it confers no legislative power whatever. It does confer judicial power, by empowering the Mayor to try certain classes of offences. It makes no laws against offences nor does it empower anybody else to make such laws. It empowers the Mayor to try of-fences, but he must try them by law. Where there is no law, there is no offence. The difficulty under which the judgment in this case labored, was the want, not of a Judge to render it, but of a law to authorize it. We think there was a capital Judge, but no law.

Judgment reversed.