Mayor of Savannah v. Hussey, No. 12

No. 12 | Ga. | Jan 15, 1857

Lead Opinion

By the Court.

Lumpkin, J.

delivering the opinion.

Can a municipal corporation legislate criminaliicr upon a case fully covered by a State Law?

I am aware that decisions may be found to support the affirmative of the foregoing proposition. 1. Wend 237; 16 Ala. Rep. 400; 8 Ib. 515; Bay. Rep. 382; 11. Mo. 61; 12 B. Munroe 25. Without stopping to investigate the applicability of these precedents to the point under enquiry, I ask, what limit will you set to this power? If it may legislate by an ordinance for any one offence, may it not for every crime embraced within the penal code ? Arson in a town or city is provided for by the public law; why not pass a by-law prescribing another mode of trial, and a different punishment for the same offence if committed within their limits? So of the crimes of forgery, counterfeiting, perjury, &c. Such I am sure, has not been the understanding of the country.

Under the general grant of power delegated by the Act of 1849, the city authorities may cover all cases not provided for by the paramount authorities of the State. Their code already fills a volume of some five hundred pages. All those ordinances regulating cemeteries, commons, markets, vehicles, fires, exhibitions, lamps, licenses, water-works, watch, police, city taxes, city officers, health, nuisances, &c., are legitimate and proper. Nay, I might go further, and concede, that where the State law defines an offence generally, and prescribes a punishment, without reference to the place where it is committed, in town or country, and the act when committed in the streets and public places of the city, would be attended with circumstances of aggravation, such as an affray, for instance, the corporate authorities with a view to suppress this special mischief, might probably provide against it by ordinance; because that ingredient or concomitant of the crime might not be supposed to be included in the State Law. And this is going quite far enough.

But in 1843, the Legislature saw fit to enact a law for the identical offence for which Christopher Hussey was tried, for the city of Savannah and other sea-port towns in Georgia. Does it not seem anomalous that under the general grant of power, which I have already quoted, that they intended to authorize this corporation to enact a penal ordinance, for the trial and punishment of this identical offence in Savannah ?

Again, the Act of 1849, declares that the Police Court of Savannah shall have cognizance in -the first instance, of all offences against the laws of this State, touching said city. Harboring seamen is an offence against the laws of the State, touching said city.

By the third section of the Act of 1843, Cobb 32, it is provided that “if any person or persons shall harbor, secrete, entertain, lodge or keep, or shall directly or indirectly suffer to be harbored, secreted, entertained, lodged or kept in and about his house or premises, any articled seaman or mariner or apprentice, knowing the said seaman, or mariner or apprentice to have deserted from his ship, or vessel, such person or persons shall, on conviction, be fined a sum of not more than five hundred dollars, or imprisoned at the discretion of the Court.”

Why was not the defendant tried for a 'violation of this act, under the jurisdiction given to the Police Court in 1849, instead of for a violation of the city ordinance, which is in conflict with the State law upon the same subject? When the State law declares, that this offence in the city of Savannah, shall be tried in a particular way, and, on conviction, punished in a certain sum, what right have the Mayor and Aldermen to change or alter the statute? In the language of the presiding Judge, “the law of the State is the law of the corporation upon this subject; and they cannot make another law for themselves.”

It is argued that the inhabitants of the city can be twice taxed, 'and why not twice punished for the same offence. That the Legislature can levy a tax for the State an aduthorize the corporation to do the same for the city. The obvious reply is, that the tax is not twice levied for the same purpose. Suppose the general Tax Act should provide, that a certain tax in addition to the State tax, should be assessed on the citizens of Savannah, for city purposes; would it not require a most plain and palpable grant of power, to entitle the corporation to raise another tax for the same purpose ? And that is the case which we are considering.

And this brings me to the only remaining view which I shall present on this subject. Suppose the State and the city may legislate for precisely the same offence, and no more nor no less, which I only do for the sake of the argument; may it not be fairly inferred, that it was not so intended in the present instance ? This offence of harboring seamen, was created by the Colonial Act of 1766 — Prince 755; which act expired by its own limitation; but was revived in 1785. In 1831, Cobb 623, the jurisdiction to try this offence was taken from the justices of the peace and given to the city authorities.. In 1843, the Legislature passed an act defining and punishing this offence; under this act, the defendant was to be tried as all other persons are, accused of crime. The Act of 1S43 expressly repeals the Act of 1766, as revived in 1785.

This means something. I am fully persuaded myself that the Legislature intended to assume the entire control and jurisdiction over this subject; and the mere fact of giving jurisdiction to the Police Court to try this offence as committed against the State, did not either authorize the ordinance, or deprive the accused of being tried by a jury of the country.

And I again gladly adopt the reasoning of the able Judge, who decided this case, upon this point. He remarks: “what a singular state of things would exist, were the contrary hypothesis true. A man harboring an articled seaman in Savannah, may be tried by the Mayor, without a jury, whereas, another citizen accused of the same offence in any county of the interior, cannot be tried, except by a jury, and even ill Savannah, he is tried by a jury or not, according to circumstances over which he has neither choice nor control.”

And the same observation may have been made as to the punishment. The fine is restricted to either one sum or another, accordingly as he may be tried before the Mayor, or the City, or Superior Court; yet the individual is the same as well as the offence, without any circumstance of aggravation or extenuation, as to the place of its commission, or in any other particular.

It is needless now to make the question, whether the Legislature could confer a duplicate power of punishing crimes upon a Corporation. I am satisfied the Legislature has not delegated any such doubtful power, to say the least of it, in the present case.

Judgment affirmed.

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Concurrence Opinion

McDonald, J.

Concurring.

The defendant was prosecuted and convicted of the offence charged against him, before the Corporation Court of the City of Savannah for the violation of an ordinance of the city. The General Assembly of Georgia has passed an act, making it an offence punishable by fine, to harbor seamen. Instead of. prosecuting the defendant for a violation of this State law, he was prosecuted, tried and convicted for the same offence, in violation of a city ordinance. The authorities of the city of Savannah cannot change, modify, or repeal a statute of the State. The legislative authority of the State is paramount to a like authority in any corporation. Even if the power existed in the Mayor and Aldermen of the city of Savannah, to legislate on this subjeet, it was in subordination to the higher legislative power existing in the General Assembly, and it could pass no ordinance coming in conflict in any manner with a statute.

But if the Mayor and Aldermen of the city of Savannah and the Hamlets thereof have power to legislate on this subject, whence did they derive it ? In this State the people alone, in which all legislative power primarily exists, can create a depository of that power. They can delegate that power, and they alone; and when they speak and confide it, and do not make it assignable to a particular body, there it abides. The Legislature cannot delegate its power. The people in their Constitution have declared where it shall exist, and by whom it shall be exercised. It is sufficient to say, that they have not authorized this great sovereign power of legislation to be partitioned and parceled out to counties or Corporation Courts, or any subordinate legislators. I do not hold that the Legislature cannot create a corporation, in virtue of its Constitutional power, and invest it with authority to pass by-laws. The ordinance, it is sufficient to say, under which the defendant was tried and convicted in the Corporation Court, is not a by-law.

It is unnecessary to consider other points which the record presents.

I concur in affirming the judgment of the Court below.

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Dissenting Opinion

Benning, J.

dissenting.

There is a statute of the State which, among other things, says that, “ If any person shall harbor,” &c., “ airy articled seaman,” “knowing the said seaman to have deserted from his ship,” “such person shall,” “on conviction, be fined in a sum of not more than five hundred dollars, or imprisonment at the discretion of the Court.” This statute was passed in 1843. Cobb’s Dig. 32.

In 1855, “the Mayor and Aldermen of the city of Savannah and the Hamlets thereof,” made an ordinance for Savannah, prohibiting the same acts that had been thus prohibited by the statute, but under a different penalty.

This ordinance contained no provision for trial by jury.

The judgment of the Mayor and Aldermen of the city of Savannah that was reversed by the Court below, was a judgment rendered in execution of this ordinance.

It was not denied by defendant’s counsel, that this judgment was right, if the ordinance was valid and the Mayor and Aldermen had cognizance of acts done in violation of the ordinance.

The Court below thought that the ordinance was not valid, and therefere it held that the judgment was wrong.

I think that the ordinance was valid, and, therefore,.I think that the judgment was right. But in thus thinking, it is my fortune to differ, not only with the Court below, but with my associates of this Court. I proceed to' give my reasons for my opinion.

1st. Was the ordinance valid ?

2d. If it was, did the Mayor and Aldermen have cognizance of offences against it ?

These are the two questions for my consideration.

The ordinance was valid if the Legislature could and did authorize the Mayor and Aldermen to make it. This is manifest

That the Legislature had the power to authorize the May- or and Aldermen to make the ordinance, I have no doubt.

Jury trial in offences of the kind in question, had not been in use at the time when the present Constitution was adopted, or at the time when any previous Constitution was adopted. Princes Dig. 755.

But I forbear to go into the question, whether the Legislature had not the power to authorize the Mayor and Aider-men to make such an ordinance as the one in question, because I do not know that either of the other members of the Court denies to the Legislature the power. I assume that the Legislature had the power.

Assuming this, the question is, did the Legislature authorize the Mayor and Aldermen to make the aforesaid ordinance ?

. The most that the Legislature ever did in this respect, it did by the third section of the Act of 1849, “amendatory of, and in addition to the various acts” previously “passed, in reference to the city of Savannah.” A part of that third section is as follows: “That the Mayor and Aldermen of the city of Savannah and the Hamlets thereof, be, and they are hereby vested with full power and authority, from time to time, to make, ordain and establish such by-laws, rules, regulations and ordinances as shall appear to them requisite and necessary for the security, welfare and convenience of the said city, or for preserving health, peace and good government, within the present or future limits of the same,” &c. Acts of 1849, 83.

Did the Legislature, then, by this part of the third section of the act, authorize the Mayor and Aldermen to make the said ordinance ?

It being assumed, as it has been by me, that the Legislature had the power to authorize the Mayor and Aldermen to make the ordinance, the question, whether the Legislature did authorise them to make the ordinance, becomes simply a question of legislative intention. The question becomes this: Did the Legislature intend, by the aforesaid part of the third section of the statute, to authorize the Mayor and Aldermen to make the ordinance ?

Now, that part of the section declared in so many plain words, that the Mayor and Aldermen might make such ordinances as “should appear to them requisite and necessary for the security, welfare and convenience of the said city, or for preserving health, peace and good government” within the same.

If, therefore, the ordinance in question appeared to the Mayor and Aldermen requisite and necessary for the security, &c., of the city, that part of the section declared in so many plain words, that they might make the ordinance.

And that the ordinance did .appear to them requisite and necessary for the security, &c., of the city, is to be presumed, at least prima facie, from the fact, that they made the ordi • nance.

Therefore, this part of the section declared in so many plain words that they might make the ordinance in question.

But if this part of the statute said this in plain words, we are bound to hold that it intended this) for, in'the interpretation of a statute, the rule is, that we must first appeal to the words of the statute, and if they give a plain, unambiguous meaning, we must go no farther, but take the meaning they give, as the one intended by, the statute.

If then we interpret by this rule, the conclusion to which we are forced to come, is, that the Legislature intended to authorize the Corporation to make the ordinance in question.

But, even if these words of the act were ambiguous, we should still have to come to the .same conclusion; because-the ninth section of the act is such that it would require us to do so. That section is in these words: “That as often as any doubts shall arise in the construction of this act, or any act heretofore passed, touching the city of Savannah, the same shall in all Courts of law and equity, and elsewhere, be construed and taken most favorably for said corporation.”

Thus then, whether we go by the leading general rule for construing all statutes, or by this special rule for construing this statute, the result is the same, and that result is the conclusion, that the Legislature intended to confer the power to make the ordinance in question on the Mayor and Aldermen.

But if the Legislature intended to confer the power, it did confer the power, because, (according to my assumption) the Legislature had the power to confer, the power.

My conclusion therefore is, that the Legislature authorized the Mayor and Aldermen to make the ordinance, and therefore that the ordinance was valid.

What is there to be urged against this conclusion ? That evil would come of it ? But a Court cannot set aside legislative intention, even although the Court may think that-evil would come of enforcing such intention. Nor, when the words of the Legislature plainly, unmistakeably, indicate a particular legislative intention, is a Court at liberty to look to the evil effects that would flow from the practical enforcement of that intention, as evidence to show that the Legislature could not have had the intention.

Rut can it be urged, with truth, against this conclusion, that evil would come of it? What would come of it? This: The ordinance and the statute would both be in force, and therefore there would be two .trials and two punishments for the same act; or the ordinance would repeal the statute, and there would be no trial or punishment for the act, except under the ordinance. But it might require both ordinance and statute to suppress the offence prohibited by them in common, and if it would require both, then that both were in force would be a good and not an evil. And, for aught that appears in the case, it would require both to suppress the of-fence.

Or if the suppression of the offence would not require both, it might be, that the one which it would require, would be the ordinance rather than thé statute. It might be, that the statute would be found wholly ineffective to prevent the offence. And for aught that appears in the case, this was found true of the statute. In that event, if the ordinance went any way towards suppressing the offence, the ordinance was a good and no't an evil.

This, I think, is all that can be said, as to what would directly and immediately come from admitting, as true, that the ordinance was valid.

But, doubtless, an indirect or collateral result of admitting this ordinance to be valid, would be the obligation to admit, that the corporation might make valid ordinances on many other subjects, on which there existed State legislation.

1 cannot deny, that I think there is some danger in allowing to a corporation power to make ordinances on subjects on which there is general legislation.

But I thinkt tha, in the first place, the danger is not of a - very alarming kind; and in the second, that it is a danger that, of necessity, has to be incurred to some extent, or all right to make any ordinance at all must be denied to a corporation.

[1.] The danger does not appear to me very alarming, because I see limits and checks to the exercise of the power-by a corporation.

1st. The Constitution of the State. This gives exclusive jurisdiction to the Superior Courts, in all offences except “minor” ones that do not subject the offender to loss of life, limb, or liberty.

2d. The liability of the corporation to lose its charter for an abuse of any of its franchises or powers.

3d. In the case of a municipal corporation like the present:'the frequency of the sessions of the Legislature, with its power to repeal, not merely any obnoxious ordinance, but the very charter itself.

The modo and the' frequency of the elections of the Mayor and Aldermen, and the extent of their power to repeal-ordinances.

Interest generally. It is 'the interest of the city, that no ordinance shall be made on any subject, if there already exists a sufficient statute on the same subject. And if any bad ordinance, of any sort, on any subject, shall be made, it will be the city that will be the chief sufferer. The Mayor and Aldermen represent the city, and they are composed of men of the city.

[2.] But say that the danger is greater than I take it to be, is it great enough to require us to deny a corporation the power to make any ordinance at all ? For if we say, that a corporation is to make no ordinance on any subject on which there is a general law, we in effect say, that a corporation shall make no ordinance at all. There is not a subject on which there is not some general law. There is not an act that a man can do, that will not, by virtue of some general law, be either right or wrong. The whole field of legislation is occupied by general law; but especially that part of the field which the ordinances of a municipal corporation would be likely to select. On the subjects of the public peace, the public justice, the public security, the public- morality, the public thoroughfares, on all subjects of police, there is general law of the most comprehensive kind.

And whether general law exists in the form of a statute, or in the form of the common law, can make no difference. A law in either form is equally the will of the Legislature.

But corporations from their very origin have been accustomed to make by-laws and ordinances on subjects on which there existed general law. And they have ever been sustained in this practice by the Courts. See Ang. & Ames, on Corp. 14 Ala. R. 400.

These things considered, then, I may say, that the argument ab inconvenienti, is not sufficient, in my opinion, to disturb the conclusion to which I came from the words of the statute; which conclusion was, that it was the intention of the Legislature to authorize the corporation to make such an ordinance as the one in question, and therefore that that ordinance was valid.

Assuming then that the ordinance was valid, the question is, did the corporation have cognizance of acts done in violation of the ordinance ?

And the answer to that question must be, that the corporation did have. The first section of the same act of 1849, (p. 83,) says, that the Police Court of the city of Savannah “ shall have cognizance in the first instance of all offences against the laws of the State touching said city, including as well this law and the laws and ordinances hereafter to be enacted and ordained, as those which are now of force,” &c. "Provided, nevertheless, that an appeal may be taken from any judgment or decision of said Court, (except a commitment for contempt,) to the Mayor and Aldermen of the city of Savannah and the Hamlets thereof, in Common Council assembled.”

If the several conclusions to which I have come are true, as I think they are, it follows from them, that the decision of the Court below was wrong. And therefore it is that I dissent from the affirmance of that decision by this Court.