Ex parte Bourgeois

60 Miss. 663 | Miss. | 1882

Chalmers, J.,

delivered the opinion of the court.

The mayor and aldermen of the city of Bay St. Louis were by the act of incorporation given “ full power and authority over all matters of police within said city; to make, publish, and promulgate all such orders, regulations, ordinances, and by-laws as they may deem necessary.and proper for the good government, welfare, and harmony of said city, not inconsistent with the Constitution and laws of the State of'Mississippi and of the United States.” Acts 1882, pp. 359 — 362.

By virtue of this authority they passed two ordinances, providing for the punishment by .fine and imprisonment of all acts which are made felonies or misdemeanors by the laws of the State of Mississippi, when the same should be committed within the limits of this city. The mode of trial was wholly unlike that provided by the general laws of this State, and the punishment differed as to most of the offences embraced by these ordinances.

Did the charter warrant this assumption of power?

We held in Johnson v. The State, 59 Miss. 543, that it was competent for the Legislature to delegate to a municipality the right to make acts which were punishable by the State punishable also by the municipal authorities when committed within their corporate limits. And while the cases elsewhere are not harmonious, the doctrine announced by us is said by Judge Cooley to be supported by “the clear weight of authority/’ Cooley’s Const. Lim. 199, note 4. Whether this power to declare acts criminal by the general laws of the State punishable also under town ordinances and thus inflict double punishment for the same offence can be deduced from a grant in a city charter of authority to make by-laws and ordinances for the welfare and good government of the city, or other general words of similar import, is a question upon which the authorities are in hopeless conflict. The various cases are collected and grouped in the note to 1 Dill, on Mun. Corp. (3ded.), sect. 368. An examination of them leads the author to the conclusion, expressed with some diffidence, that this power of double punishment for a single act on this delegation of authority to a local municipality to punish acts which are crimes against the State, by a mode of procedure and degree of punishment unknown to the State law, cannot be inferred from a mere general authority to legislate for the good government of the municipality, but must be clearly given, and if not so given does not exist.

An investigation of the cases, and a consideration of the principles on which they rest, induce us to accept Judge Dillon’s conclusion, and this conclusion is fatal to the validity of the ordinances here in question.

It is by no means clear, from our attentive perusal of the charter of Bay St. Louis, that any criminal power was intended to be conferred save such as was necessary to insure obedience to such police regulations as might be from time to time ordained. We mean by police regulations, in this connection, such as have reference to health and cleanliness to streets, wharves, lights, markets, watchmen, and the like, orto thecom-missiou of acts which, though not criminal under State laws, might properly be made so when committed within city limits. We can see no clear expression of legislative will that an observance of the criminal laws of the State might, within the city, be insured by the double security of State and municipal authority by making a violation of them doubly punishable as an offence both against the peace and dignity of the State and against the quiet and good order of the city. While it might be eminently wise and proper soto do, it does not clearly appear that it has been done.

The offence committed by the relator in this case was that of being drunk in a public place, which is criminal and punishable under the State law. For it he had been punished by the justice of the peace of the beat in which the city is included. We fail to discover any authority .in the charter for punishing it again as an offence against the city.

The judgment of the chancellor, discharging the relator, is affirmed.