JENKINS, Chief of Police, etc. v. JONES., 209 Ga. 758, 75 S.E.2.d 815 (1953)

Supreme Court of Georgia

Status: ARGUED

Docket Number: 18150

Parts: ALMAND, Justice.

Linked as:

Summary

Judgment affirmed. All the Justices concur, except Candler, J., who dissents, and Atkinson, P. J., not participating.

Summary

Judgment affirmed. All the Justices concur, except Candler, J., who dissents, and Atkinson, P. J., not participating.

Text

G. Fred Kelley, Frank Grizzard, Frank A. Bowers, Paul Webb, Solicitor-General, and Norman H. Fudge, contra.J. C. Savage, J. C. Murphy, J. M. B. Bloodworth, John E. Feagin and Henry L. Bowden, for plaintiff in error.

1. A municipal ordinance penalizing an act made penal by existing State law covering the same subject matter must yield to the State law.

2. An ordinance making the operation of a motor vehicle on the streets of the municipality while under the influence of intoxicating liquors a municipal offense, punishable by fine and imprisonment, violates art. 1, sec. 4, par. 1 of the State Constitution, there being an existing law of general operation (Code, Ann. Supp., 68-307) which covers the same subject matter.

The undisputed facts before the trial judge were: The petitioner was being held by the respondent on a charge of violating an ordinance of the City of Atlanta, adopted in 1953, which made it a municipal offense to "operate a motor vehicle of any kind upon any public street or alley in the City of Atlanta while under the influence of intoxicating liquors or drugs," which ordinance provided that one guilty of its violation was subject to a fine of not exceeding $500, and a sentence to work on the public works or streets not to exceed 60 days, any or ali of these penalties in the discretion of the trial judge. The petitioner contended that his restraint was illegal, because the ordinance he was charged with violating was unconstitutional, null, and void, in that, (a) it was a special law for which provision had been made by an existing general law (Code, Ann. Supp., 68-307), wherein the operation of a motor vehicle on any street or highway of this State while under the influence of intoxicating liquors or drugs is declared to be a misdemeanor, and therefore said ordinance violated art. 1, sec. 4, par. 1 of the Constitution of Georgia (Code, Ann., 2-401); and (b) the ordinance violated the due-process clause of the State Constitution (Code, Ann., 2-103).

1. Code 68-307, which makes it a misdemeanor to operate a motor vehicle on the streets and highways of Georgia while under the influence of intoxicating liquors or drugs, has been a law of general operation since 1910. Ga. L. 1910, pp. 90, 93; Id. 1927, pp. 226, 238; 1947, p. 230. The municipal ordinance here under consideration deals with the same subject matter, viz., operating a motor vehicle on the highways or streets in the City of Atlanta while under the influence of intoxicating liquors or drugs, and does not introduce any ingredient or concomitant essential to the preservation of the city's peace, health, or good order which is not included in Code 68-307. Where a municipal ordinance and a public criminal statute operate upon the same state of physical acts, the ordinance is invalid unless the offense created thereby contains some characterizing ingredient not contained in the State offense. Aycock v. Town of Rutledge, 208 Ga. 850 (69 S. E. 2d, 774), and citations.

The ordinance under an attack in this case is violative of art. 1, sec. 4, par. 1 of the Constitution of Georgia (Code, Ann., 2-401). The detention of the prisoner by the respondent, being by virtue of a void ordinance, was illegal, and the trial judge properly made the writ of habeas corpus absolute and discharged the petitioner from the custody of the respondent.

CANDLER, Justice, dissenting. With due regard for the contrary view of any colleagues, I cannot agree to the judgment of affirmance. Mr. Presiding Justice Atkinson and I dissented from the ruling in Giles v. Gibson, 208 Ga. 850 (69 S. E. 2d, 774), which is cited and strongly relied upon by the defendant in error in this case; and City of Atlanta v. Hudgins, 193 Ga. 618 (19 S. E. 2d, 508), upon which the defendant in error also relies, is not in point on the question here involved. It deals with our constitutional provision which prohibits the passage of a special law affecting the uniform operation of a general law. In 1927 the legislature passed an act amending the "Georgia Motor Vehicle Law" (Ga. L. 1927, p. 226), which in part provides: "No person shall operate a motor vehicle or motorcycle upon any public street or highway, whether as owner or operator of such vehicle, if under 16 years of age, or while under the influence of intoxicating liquors or drugs." Code, 68-307. During January, 1953, the City of Atlanta, a municipal corporation, adopted an ordinance which provides: "No person shall operate a motor vehicle of any kind upon any public street or alley in the City of Atlanta while under the influence of intoxicating liquors or drugs." The legislature's amending act of 1927 also provides (p. 240): "That nothing contained in this act shall be construed as changing or interfering with any regulation or ordinance which has heretofore or may hereafter be adopted by any municipality of this State, regulating the running or operation of motor-vehicles described in this Act; and provided further, that nothing in this Act shall prevent cities and towns from regulating, by reasonable ordinance, the rate of speed except as provided hereinafter, noisy cut-outs, and glaring headlights within said cities and towns." This section, however, has been codified to read as follows: "Nothing contained in this law shall be construed as changing or interfering with any regulation or ordinance which has heretofore been or may hereafter be adopted by any municipality, regulating the running or operation of motor vehicles described in this law; and nothing in this law shall prevent cities and towns from regulating, by reasonable ordinance, the rate of speed except as provided hereinafter, noisy cut-outs, and glaring headlights within said cities and towns." Code, 68-312. The question posed by the record is the validity of the city's ordinance. Jones contends that the ordinance prohibits and punishes an act which is dealt with and fully covered by an existing penal statute of State-wide operation, and that it is invalid for that reason. Jenkins contends that the City of Atlanta, a municipal corporation, was expressly authorized to adopt the ordinance by the legislature's act of 1927, and that it is valid for that reason, though fully covered by a penal statute of State-wide operation. Jenkins' position has support in several prior decisions of this court, which should be followed as controlling authority. They begin with Hood v. Von Glahn, 88 Ga. 405 (14 S. E. 564), where it was held by a full bench that the legislature could constitutionally authorize a municipal corporation to punish, as an offense against the municipality, an act punishable under an existing general law as an offense against the State. The opinion was prepared for the court and agreed to by Mr. Justice Simmons. The ruling made in the Von Glahn case was subsequently followed in Littlejohn v. Stells, 123 Ga. 427 (51 S. E. 390), with all the justices concurring except Mr. Chief Justice Simmons who was absent. Littlejohn's case cited Von Glahn's case as authority for its holding and by headnote said: "The General Assembly may, by express enactment, authorize the corporate authorities of municipalities to provide by ordinance for the punishment of an act which in its nature affects the health, peace and good order of the community, notwithstanding that such an act has already been made penal under the general law of the State." This case also holds, citing Von Glahn's case as authority therefor, that, prior to the adoption of the Constitution of 1877, such power could be conferred by the legislature upon municipalities either by general or spe-

cial law, but the ruling in Aycock v. Town of Rutledge, 104 Ga. 533 (30 S. E. 815), was cited as authority for a holding that, since the adoption of the Constitution of 1877, such power could be conferred only by a general law. In Lanford v. Alfriend, 147 Ga. 799 (95 S E. 688), this question arose again and it was there held: "It is competent for the legislature to pass general laws conferring on all municipalities the power to pass ordinances similar to general State laws ( Littlejohn v. Stells, 123 Ga. 427, 51 S. E. 390), but this cannot be done by a special law which in itself is repugnant to the provisions of the Constitution (art. 1, sec. 4, par. 1) forbidding the passage of a special law in any case for which provision has been made by an existing general law." All of the Justices agreed to the decision except Mr. Chief Justice Fish who was absent, but he had concurred in Littlejohn v. Stells. The rule respecting this question, laid down in Dillon on Municipal Corporations (vol. 1, 4 ed., 368), is as follows: "Where the act is, in its nature, one which constitutes two offenses, one against the State and one against the municipal government, the latter may be constitutionally authorized to punish it, though it be also an offense under the State law; but the legislative intention that this may be done ought to be manifest and unmistakable, or the power in the corporation should be held not to exist." And in the Von Glahn case, supra, Dillon's rule was expressly approved by this court as being a correct statement of the law. In the Georgia cases relied upon by the defendant in error as being opposed to the position taken by Jenkins, it will be found that the ordinances involved were not shown to have been authorized by any express legislative grant. See, as cited by counsel, Mayor &c. of Savannah v. Hussey, 21 Ga. 80 (68 Am. D. 452); Penniston v. City of Newnan, 117 Ga. 700 (45 S. E. 66); Mayo v. Williams, 146 Ga. 650 (92 S. E. 59); Barlow v. Mayor &c. of Americus, 146 Ga. 805 (92 S. E. 643); Snipe v. Dixon, 147 Ga. 285 (93 S. E. 399); Smith v. Chapman, 166 Ga. 479 (143 S. E. 422); Marshall v. City of Griffin, 173 Ga. 782 (161 S. E. 622). In the first of these cases ( Mayor v. Hussey), it was held by a majority of the court, Benning, J., dissenting, that a general power to pass such ordinances "as shall appear to them requisite and necessary for the security, welfare and convenience of the city; and for preserving health, peace and good government within the same," did not authorize the municipal authorities to legislate as to an offense covered by the State law. But respecting legislative power to authorize the municipal authorities to pass such an ordinance, Benning, J., in the same case, says: "I forbear to go into the question whether the legislature had not the power to authorize the mayor and aldermen 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."

As opposed to Jenkins' contention, it is argued by counsel for Jones that the ordinance offends article 1, section 1, paragraph 8 of the Constitution of 1945 (Code, Ann., 2-108), which inhibits double jeopardy for the same offense. To this I also disagree. Where the same act constitutes a crime against a municipality and against the State, it is ordinarily held, in the absence of a statute to the contrary, that a conviction or an acquittal of either is no bar to a conviction of the other. 22 C. J. S. 449, 296-b. Hence, the same act may constitute an offense both against a general penal statute of the State and against an ordinance of a municipal corporation, and both may punish for it without violating any constitutional principle. In such a case, "punishment for the same act is not necessarily punishment for the same offense," because, "when committed in a city, and when of that class of acts which tend to disturb the local health, peace and good order, and which therefore fall properly within the scope of municipal jurisdiction, an act punishable by the general law may, because of its more serious consequences in a city than elsewhere, constitute an additional offense, punishable by a municipal by-law and as an offense against the city." Hood v. Von Glahn, supra; McRae v. Mayor &c. of Americus, 59 Ga. 168 (27 Am. R. 390); Purdy v. State, 68 Ga. 295; DeGraffenreid v. State, 72 Ga. 212. As to this, it has been well said: "The act is single, its effect double; and for each effect there may properly, and without working injustice to the rights of the offender, be a separate remedy or penalty. The offense is per se contrary to the good order of the State, and therefore a certain punishment is prescribed for it wherever committed; but the offense, if committed within the limits of a populous town or city, may work much greater injury to the local peace and good order, and it is proper that the town or city should have its remedy and a separate right to punish for the special and additional wrong done to it . . . In this sense then it may be truly said that the same act may be a wrong to the public at large and an additional wrong to the community where committed. It would be an offense against the dignity of the State and also an offense against the good order of the municipality." Horr and Bemis on Municipal Police Ordinances, 89.

As I have previously pointed out in this dissenting opinion, the General Assembly in 1927 amended the "Georgia Motor-Vehicle Law" of 1915, and by the amendment expressly authorized each municipality of this State to regulate, by reasonable ordinance, the running or operation of motor vehicles upon its respective streets and alleys, and the motor-vehicle ordinance which the City of Atlanta pursuantly adopted was fully authorized by that amending act. The act of driving a motor vehicle upon the streets and alleys of a municipality while under the influence of intoxicating liquors or drugs is one which peculiarly affects the peace and good order of the municipality, and for which it can separately punish without interfering with the right of the State to deal with the same act by a general penal statute. See, in this connection, Aycock v. Rutledge, supra. And the ordinance being one which the City of Atlanta had legislative power to pass, it is valid though fully covered by the State's existing general statute which prohibits and punishes the act of operating a motor vehicle or motorcycle upon any public street or highway while under the influence of intoxicating liquors or drugs. In other words, the ordinance and the State's penal statute, which is 68-307 of the Code of 1933, may legally coexist, though the former is fully covered by the latter. The act of 1927, which empowered the several municipalities of this State to regulate,, by reasonable ordinance, the running or operation of motor vehicles upon their respective streets and alleys, is a general law, and the ordinance in question is not a "special law" affecting the uniform operation of a general law within the meaning of article 1, section 4, paragraph 1 of the Constitution of 1945, as the defendant in error argues. See Maner v. Dykes, 183 Ga. 118 (187 S. E. 699), in which Forbes v. City of Savannah, 160 Ga. 701 (128 S. E. 806), was reviewed and expressly overruled. As I view the case, Jones should have been remanded to the custody of Jenkins.

1953