Cook v. City of Pascagoula

83 So. 305 | Miss. | 1919

Holden, J.,

delivered the opinion of the court.

This is an appeal from a conviction in the circuit court under an ordinance of the municipality of Pascagoula making it unlawful to possess intoxicating liquor. The only question presented by the appeal is the validity of the municipal ordinance involved and the legality of the penalty imposed.

The municipal ordinance under which the conviction was had was legally adopted in all respects and reads as follows:

‘ ‘ Section 1. That all offenses against the penal laws of the state of Mississippi amounting to a misdemeanor shall also be offenses against the city of Pascagoula, Mississippi, when committed within the corporate limits thereof.

“Sec. 2. That any person violating the provisions of this ordinance shall, upon conviction, be fined not less than one dollar nor more than one hundred dollars, or imprisonment in jail not to exceed thirty days, or both fine and imprisonment.”

Upon trial and conviction of appellant, the court imposed a fine of one hundred and ten dollars and ten days in jail. It is urged by the appellant that the penalty imposed is void, because it is in excess of a fine of one hundred dollars; that the whole ordinance is void because it imposes a penalty of a fine of not less than one dollar or more than.one hundred dollars for all offenses; and that the penalty imposed by section 2 of the ordinance is void and invalidates the entire ordinance because a maximum penalty of one hundred dollars and thirty days’ imprisonment is imposed in the ordinance for conviction of any and all of the misdemeanors named in the state statutes,- whereas some of the offenses prescribed by the state laws, such as Sabbeth violations, are punishable under the statutes with a less maximum penalty than one dollar to one hundred dollars fine and thirty days’ imprisonment, as imposed by section 2 of the ordinance here in question.

We here quote sections 3410 and 3348, Code of 1906:

“3410. All offenses, under the penal laws of the state amounting to a misdemeanor shall, when so provided by a general ordinance of the municipality, also be offenses against the city, town or village in whose corporate limits the offense may have been committed to the same effect as though such offenses were made offenses against the city, town or village by separate ordinance in each case, and upon conviction thereof the same punishment shall be imposed by the city, town or village as is provided by the laws of the state with regard to such offenses against the state not in excess of the maximum penalty which may be imposed by municipal corporations. ’ ’

“3348. To pass all ordinances, and to enforce the same by fine not exceeding one hundred dollars, or imprisonment not exceeding thirty days or both.”

It will be observed that the municipal ordinance here involved is a general ordinance of the municipality providing that all offenses against the penal laws of the state of Mississippi amounting to a misdemeanor shall also be offenses against the city of Pascagoula when committed within the corporate limits. This general or “blanket” ordinance is in pursuance of and in accord with section 3410, Code of 1906, which provides that such enactment by the municipality shall be as effectual as a separate ordinance in each case, and that upon conviction the same punishment shall be imposed by the municipality as is provided by the laws of the state with regard to such offenses against the state, not in excess, however, of the maximum penalty which may be imposed by municipal corporations under section 3348, Code of 1906.

We are of the opinion that section 2 of the municipal ordinance, which undertakes to impose a penalty which in some cases is and would be in excess of the penalty provided by the laws of the state with regard to the same offense against the state, is void and of no force. In order for the penalty to be legal and valid, it must be such as may be legally and validly imposed upon conviction of any offense named in the ordinance. Because the penalty imposed would not be in excess of that provided by the state law for the same offense in any particular case, the one here, for instance, could not cure the fatal infirmity in section 2 of the ordinance, because the court is not authorized to make separate applications of the penalty - and hold that it is a valid penalty in one case and not in the other, as they may arise; but if the maximum or minimum penalty prescribed in the ordinance here is contrary to the penalty prescribed by the state laws for such offenses, then the penalizing portion of the ordinance is void and must be stricken out.

However, we find no difficulty here in upholding the ordinance making the slate offenses violations against the municipality, because the ordinance is valid and may stand without section 2 imposing the void penalty. Section 2 is a useless and unnecessary provision in view of section 3410 of the Code. We think it reasonable to conclude that the municipality would have enacted seo< tion 1 of the ordinance without section 2, because section 3410 of the Code prescribes the penalty to be imposed for violations of the ordinance.

Therefore when the municipality adopted the general ordinance providing that offenses against the state should be municipal offenses, it then and there fully read into the ordinance sections 3410 and 3348, Code of 1906, which plainly provide that the “blanket” ordinance shall serve in the place of separate ordinances for each offense; and that upon convinction by the municipality the same punishment shall be imposed by.the municipality as is provided by the laws of the state upon conviction by the state. Of course, in no event could the maximum penalty exceed a fine of one hundred dollars and thirty days’ imprisonment. Thus it will be seen that when a municipality takes advantage of the provision in section 3410, Code of 1906, by adopting a general ordinance on the subject of offenses against the municipality, the- ordinance so adopted is self-operative, or we may say operates automatically, because the statute, section 3410, plainly provides the penalty in all cases of conviction by the municipality. Consequently, we hold that the ordinance here in question is valid, and that the penalty to be imposed upon conviction in each case by the municipality is the same penalty imposed by the state for conviction in like eases; the maximum penalty being a one hundred dollar fine and thirty days ’ imprisonment.

The fine of one hundred and ten dollars imposed in this ease is excessive to the extent of ten dollars and for that reason we must reverse the judgment of the lower court so that the proper penalty under the law may be imposed by the court. In all other respects the judgment of the lower court is affirmed.

Reversed as to penalty; affirmed otherwise.

Reversed.

Affirmed.