Massey v. City of MacOn ( 1958 )

On Motion roe Rehearing.

The defendant in error contends that the certiorari was properly dismissed because the plaintiff in error did not set out the ordinance under which he was tried for contempt. The plaintiff in error alleged in his petition that he was convicted under Section 5-103 of the Code of the City of Macon and Section 46 of the city’s charter, and quoted therefrom. In his untraversed response the recorder denied that the plaintiff in error was tried under Section 5-103 of the city code but alleged that he was tried under Section 28-105 of that code. However, the recorder admitted that Section 46 of the Charter of the City of Macon is codified in the code of the city as Section 5-103 and that Section 46 of the charter was correctly quoted in the petition for certiorari. Attached to the response is a certified copy of Section 28-105 of the city code which code section also incorporates therein that portion of Section 46 of the city charter relating to contempts in the recorder’s court. The only authority granted to the Recorder of the City of Macon regarding contempts is found in Section 46 of the city’s charter (Ga. L. 1927, p. 1313) which states, “Said recorder shall not have the authority to inflict a greater punishment for contempts than to impose a fine of one hundred dollars or imprisonment, in the city prison for a time not exceeding thirty days.” It is apparent that the authority to punish for contempts contained in Section 46 of the city’s charter is incorporated in the city code in both sections 5-103 and 28-105. Since the power to punish for contempts contained in each of these code sections is derived from the same source in the city charter, it matters little whether the plaintiff in error was convicted under Section 5-103 or Section 28-105 of the city code. Since he could have been tried for contempt under each section of the code and since they are identical in so far as power to punish for contempt is concerned, the allegation and quotation from Section 5-103 in the petition for certiorari is sufficient to meet the requirements of law.