Smith v. City of Albany

Carlisle, Judge.

Lillie Pearl Smith was tried and convicted in in the Recorder’s Court of the City of Albany on a charge under the provisions of Chapter 14, § 16 (a) of the Code of the City of Albany, making it “unlawful for any person to possess any ticket, number, combination, or anything representing a chance in any lottery or gift enterprise, commonly known as bolita or number’s game, or other similar scheme or device, within the corporate limits of the city or the police jurisdiction thereof.” Her petition for certiorari to the superior court, after having been sanctioned, was overruled, and the exception here is to that judgment. In the brief and argument of counsel for the plaintiff in error before this court, the only contentions are that the ordinance of the City of Albany under which the defendant was convicted is “illegal and void” because it does not provide that the possession of lottery paraphernalia must be coupled with the intent to violate the ordinance, and that the ordinance is in direct conflict with the provisions of the Constitution of the State of Georgia (Code., Ann., § 2-204), prohibiting lotteries and the sale of lottery tickets. Held:

1. While the defendant in her petition for certiorari sought to raise the constitutionality of the ordinance with respect to Art. 1, Sec. 1, Par. 3 of the State Constitution and with respect to the Fourteenth Amendment of the Federal Constitution, the due-process clauses of the respective Constitutions, the constitutionality of the ordinance with respect to these provisions, if it was raised in the Recorder’s Court of the City of Albany at all, was referred to only in the second of the demurrers filed which alleged that said ordinance is illegal and void because it makes the mere possession of lottery tickets and the like, uncoupled with any wrongful intention, a crime, whereas the State law requires a union, or a joint operation of act and intention or criminal negligence to constitute a crime. This ground of demurrer does not specify by chapter number, section number, or paragraph number, or in any other manner identify what law or constitutional provision it is contended is violated by the ordinance attacked. Such an attack was entirely too vague and general to raise any question as to the constitutionality of the ordinance insofar as it might contravene the due-process clauses of the,State and Federal Constitutions. Tooke v. State, 4 Ga. App. 495 (1a) (61 S. E. 917); Parker-Hensell Eng. Co. v. Schuler, 7 Ga. App. 396 (2) (66 S. E. 1038). This question not having been properly raised before the recorder’s court could not be raised and insisted upon for the first time in the petition to the superior court for certiorari. Lunsford v. State, 187 Ga. 162 (199 S. E. 808). It follows that the trial court did not err in overruling the certiorari insofar as it sought to raise the constitutionality of the ordinance under the due-process clauses of the State and Federal Constitutions.

2. The section of the Code of the City of Albany under which the defendant was convicted merely makes the possession of any ticket, etc., unlawful, and it does not prohibit lotteries or the sale of lottery tickets, nor does it make the selling or procuring or furnishing of any ticket, etc., or the operation of a lottery a crime. If it may be said that the other grounds of demurrer interposed by the defendant in the Recorder’s Court of the City of Albany and attacking the ordinance on constitutional grounds sufficiently raised the question as to whether the ordinance violated the provisions of Art. 1, Sec. 4, Par. 1 (Code, Ann., § 2-401) of the State Constitution prohibiting the enactment of any local or special law in conflict with the general law and affecting private rights, such demurrers were properly overruled since an examination of the particular ordinance under attack and under which the defendant was convicted shows that it does not purport to make criminal that which is by the constitutional and statutory provisions referred to in those grounds of demurrer made a crime. The constitutional and statutory provisions referred to in these grounds of demurrer, namely, Constitution of the State of Georgia of 1945, Art. 1, Sec. 2, Par. 4 (Code, Ann., § 2-204), and Code §§ 26-6501 and 26-6502, do not prohibit the mere possession of lottery tickets and other paraphernalia or make such possession a crime.

Decided June 23, 1958. Frank F. Faulk, Jr., for plaintiff in error. H. G. Rawls, contra.

3. The trial court did not err in overruling the petition for certiorari.

Judgment affirmed.

Gardner, P. J., concurs. Townsend, J., concurs specially.