Littlejohn v. Stells

Cobb, J.

1, 2. It is well settled that a municipal corporation can not by ordinance provide for the punishment of an act which constitutes a criminal offense under the general law of the State, in the absence of express legislative authority conferring this power upon the municipality. Moran v. Atlanta, 102 Ga. 840. Prior to the adoption of the present constitution the General Assembly could confer this power upon municipalities either by general or special law. Hood v. Von Glahn, 88 Ga. 405. The present constitution prohibits the General Assembly from passing special laws upon this subject. Aycock v. Rutledge, 104 Ga. 533. But the power to pass a general law on the subject still exists. The General Assembly can not delegate to a municipality the authority to punish in a municipal court a State offense as such. Grant v. Camp, 105 Ga. 428. But it may authorize the punishment of an act as a city offense which would also be a State offense, provided the terms of the act conferring the authority are clear and unequivocal and manifest a legislative intent to confer authority for the punishment of such act. Hood v. Von Glahn, supra. The sale of liquor is prohibited in the county of Cobb. Hence a sale on Sunday, as well as on other days, would be a violation of the State law, and the authorities of the City of Marietta would have no power to provide for the punishment of . one making such a sale on Sunday, in the absence of express legislative authority. The act of 1903, under which it is claimed that this authority is conferred, is a law general in its terms, and purports to confer authority upon each city in this State, and it is manifest from the language of the act that there was a legislative intent to authorize the corporate authorities of the various cities in this State to provide for the punishment of the act of selling liquor on Sunday. The act of selling spirituous liquors on Sunday is not, under all circumstances, in and of itself a distinct offense under the criminal laws of this State. Moran v. Atlanta, supra. The act of selling liquor at any time is, however, a distinct offense, under the criminal law of this State, in any county where a prohibitory law prevails. Hence, in order to confer authority upon the police courts of cities to punish for the sale of liquor on Sunday in such counties, express legislative authority is necessary; but the corporate authorities of cities located in those counties where no prohibitory law prevails could provide for the punishment of those selling liquor on Sunday under the general powers in the charters of the different cities. The act in question clearly and unequivocally confers power upon the corporate authorities of the cities to punish the act of selling liquor on Sunday, and the fact that such legislation was unnecessary, so far as one class of cities is concerned, would not make the act invalid in so far as it was necessary to confer authority upon another class of cities. The •act does not purport to confer authority to punish for a State offense, but it in terms grants to the corporate authorities of the different cities the right to provide for the punishment of an act which, when committed in cities of a given class, would be a violation of the criminal law of the State. We think it sufficiently appears from the terms of the act that there was a manifest legislative intent to authorize the city authorities of the different cities of the State to provide for the punishment of those who engage in selling liquor on Sunday, whether such sales be made in cities where such act would be a State offense, or in cities where such an act would not be an offense against the State. Such being the case, the ordinance passed by the corporate authorities of the City of Marietta was a valid ordinance. The police court of the City of Marietta had jurisdiction to punish for the city offense defined in the ordinance, and could proceed according to the lawfully authorized procedure and practice of that court. The applicant, when arraigned before that court, not being charged with a crime against the State, but simply with a violation ,of a municipal ordinance, would not be entitled, under the constitution, to a trial by jury. The case of Hood v. Von Glahn, supra, is controlling on this point.

3, 4. Under the act the municipal authorities could not provide for any other character of punishment than fine or imprisonment, either or both. The ordinance provides only for the punishment authorized by the act, and therefore the mayor had no authority to sentence the applicant to work upon the city chain-gang. There was no error in refusing to discharge the applicant, but he should not have been remanded to the respondent to work upon the city chain-gang. Direction is given that he be remanded to the custody of the respondent, to be •carried before the mayor of Marietta to be sentenced, in accordanee with the act and the ordinance. ' He should have been released from the chain-gang, but held in custody as one duly convicted in the mayor’s court, subject to sentence therein according to law. Wells v. Newton, 101 Ga. 142 (4); Russell v. Tatum, 104 Ga. 332; Screen v. State, 107 Ga. 715. The judgment will be affirmed, with direction to this effect.

Judgment affirmed, with direction.

All the Justices concur, except Simmons, O, J., absent.