Abstracts market clerk, whose duty it was to lease the stalls at such price and for such length of time as might be fixed by the mayor and aldermen by resolution from time to time, provided such stalls should not be rented for less than a minimum price fixed; and by a section of such ordinance fixed such price: held, that approval of his action in renting stalls at the minimum price was not necessary, and the power to lease at such price could not be revoked as to leases already made, and paid in advance. Appeal from chancery court, Harrison county; N. C. Hill, Chancellor. Suit by H. T. Graves and others against the city of Biloxi. From a decree for defendant, plaintiffs appeal. Reversed. W. H. Maybin and Neville & Griffith, for appellants. Harper & Potter, for appellee. TERRAL, J. We are inclined to the opinion that the ordinance of the city of Biloxi authorized market clerk Moseley to rent the stalls of the city market at the minimum prices fixed by it, and that Graves, Swetman, and Borries, who took possession of said stalls under said contract, and paid the purchase price, are entitled to hold the same; and the city authorities may not deny the market clerk to have the power with which he was apparently clothed by their ordinance. The several sections of Ordinance No. 198, especially sections 2, 8, and 9, would seem to authorize the market clerk to rent out the stalls of the market at the prices fixed by section 8; and this authority of the market clerk, when exercised by renting of the stalls, may not be revoked as to leases made before such revocation. Nor do we think any approval of the action of the market clerk was necessary to its validity. The decree dissolving the injunction is reversed, the injunction is reinstated, and the case is remanded for further proceedings. any person Hood v. Mayor, etc., of City of Griffin. * * * Criminal Ordinance—Intoxicating Liquors-Sufficiency of Warrant.— Where a municipal ordinance declared that "it shall be unlawful for to keep for sale, barter or exchange, any spirituous, malt or vinous liquors within the corporate limits of a named city, and prescribed a penalty for the violation of the same, and the warrant upon which an accused person was tried in the municipal court alleged that he, upon a day named, did, in such city, keep for sale a quantity of spirituous liquors, there was no merit in the point that the accused was charged with no offense, nor in the contention that, if any offense was charged, it was the violation of a penal statute of the state. (Syllabus by the Court.) Error from superior court, Spalding county; E. J. Reagan, Judge. D. T. Hood was convicted of violating a city ordinance of the city of Griffin, and brings error. Affirmed. T. E. Patterson and T. W. Thurman, for plaintiff in error. W. E. H. Searcy, for defendant in error. Abstracts FISH, J. There is no merit in the contention that the warrant charged no offense. The ordinance in question defines an offense, and provides for the punishment of those who commit it, and the warrant charged the accused with having committed this offense. This very ordinance has been decided to be valid. Cunningham v. City of Griffin, 107 Ga. 690, 33 S. E. 664. See, also, in this connection, Paulk v. City of Sycamore, 104 Ga. 728, 31 S. E. 200; Brown v. Town of Social Circle, 105 Ga. 834, 32 S. E. 141; Papworth v. City of Fitzgerald, 106 Ga. 378, 32 S. E. 363. Nor, under the decisions in the above-cited cases, is the ground that the warrant charged an offense against a penal statute of the state well taken. It was held in Paulk v. City of Sycamore, supra, that "possession of intoxicating liquors for the purpose of selling them contrary to law is not a crime punishable under the laws of this state; and therefore it is competent for the authorities of a municipal corporation, when authorized by its charter, to adopt an ordinance declaring such possession to be an offense against the city, and to provide that the offender shall be punished for the same." This decision was followed in the other cases. City Council of Abbeville v. Leopard. [39 S. E. Rep. 248.] Prosecution under City Ordinance-Process-Constitutional Provision. Const. art. 5, 31, providing that all writs and processes shall run, and all prosecutions shall be conducted, in the name of the state, does not prohibit a prosecution for violation of a city ordinance by the city council. Same Charter Provision-Concealed Weapons. A city charter, permitting a municipality to pass such ordinance for the safety of the citizens as may be necessary, and providing that no fine or penalty shall exceed $100 or imprisonment for a longer period than 30 days, authorizes an ordinance against carrying a pistol within the city concealed about the person. Appeal from general sessions circuit court of Abbeville county: Benet, Judge. J. D. Leopard was convicted of violating an ordinance of the city council of the city of Abbeville by carrying concealed weapons. From an order sustaining defendant's appeal reversing the judgment, the city council appeals. Reversed. M. P. De Bruhl, for appellant. Ellis G. Graydon, for appellee. POPE, J. There are only two questions of any moment involved in this appeal, viz.: First. Is the proceeding of the city council of Abbeville void by reason of its failure to have its process run in the name of the state of South Carolina? Second. Was the ordinance of said city council of Abbeville within the powers with which it was invested by the general assembly of this state? Abstracts We will dispose of these questions in their order. The circuit judge was so impressed with the language of the constitution of this state, adopted in the year 1895, and set out in section 31 of article 5, that he felt bound to deny to the city council of Abbeville the right, in its corporate name, to prosecute the defendant for the violation of one of its ordinances. The language employed in said section 31 of said article 5 was as follows: "All writs and processes shall run and all prosecutions shall be conducted in the name of the state of South Carolina." (Italics ours.) We fear that the learned circuit judge for the moment overlooked the distinction between offenses against the general laws of the state, which affect and govern its entire citizenship, or, to be more accurate, all of its inhabitants, and those offenses which consist in a breach of the laws governing the inhabitants of a city or town in this state within the corporate limits of such city or town. This distinction was recognized and enforced as early as the year 1787, as will be seen in the case of McMullen v. City Council, 1 Bay, 46. In the case cited the city council of Charleston had assumed jurisdiction to try the defendant for a violation of a state law. The court denied it any such power. It was then declared: "As to the conviction, this was for the offense of selling spirituous liquors, an offense neither cognizable by them either under their charter or the act of 1784, any more than homicide or manslaughter. It is not an offense against any of their by-laws. Therefore their power to commit did not extend to this offense. It is an offense against the public revenue act of the state. This act is not one of the by-laws of the city corporation, but a public law, cognizable only by the supreme court throughout the state." The practice of prosecuting offenses against the ordinances of a city or town, in the name of the city or town council of the particular city or town affected, is hoary with age. It has existed far beyond the century last passed. No particular value can be ascribed to the phraseology used in section 31 of article 5 of the constitution of 1895, for the identical language was employed in section 31 of article 4 of the constitution of 1868. And an examination of the second section of article 3 of the constitution of 1790 will show this language as there employed: "The style of all process shall be 'The State of South Carolina.' All prosecutions shall be carried on in the name and by the authority of the state of South Carolina." See 1 St. at Large, p. 189. The power is always given to municipal corporations in this state to sue and be sued by their corporate names. This has always been. accepted as authorizing a prosecution in the corporate name for an infraction of municipal ordinances, as the multitude of cases in the reports of this state shows. Such being the law in this state, the constitution of the year 1895 retained all such laws. See section 10 of article 17. Such being our view, we sustain all of the exceptions relating to this question. Abstracts * * 66* * * We will now examine the question touching the power of the city council of Abbeville to pass the ordinance in question. Whenever the power of the city council is challenged, it must always be able to lay its finger upon some express grant of power by the general assembly of this state. Inherently it has no power. By referring to the act incorporating the city of Abbeville, as found at page 1134 of 21 Statutes at Large of this state, at section 6, we find such municipality was clothed with the power to make ordinances, and such other matters pertaining to the concerns of said corporation as shall be proper, necessary or advisable for the preservation or safety of the peace, order, comfort, health, convenience and welfare of the citizens of said city; may fix and impose fines and penalties for the violation of law or its ordinances, but no fine or penalty shall exceed $100, or imprisonment in the guard house for a longer period than thirty days. We consider this a grant of power to make an ordinance against carrying a pistol concealed about the person. But, if there was any doubt as to the foregoing grant of power, such doubt is set at rest by the act of 1896, by which said city of Abbeville is clothed with full power to do so. See 22 St. at Large, p. 67, which last was made to apply to the city of Abbeville by the provisions of an act passed in the year 1897, and found in 22 St. at Large, p. 464. The act of 1896, just referred to, at section II, gives town councils full power to pass an ordinance such as that in question. Although we hold that the general assembly of this state has clothed the city council of Abbeville with power to pass the ordinance for the violation of which the defendant was convicted, yet we hold, at the same time, that it had no power to affix the penalty of a forfeiture of the pistol used by defendant. No such power is conferred by the constitution. But this does not affect the defendant, who was only sentenced to pay a fine or be imprisoned. It is no longer an open question in this state as to the power of a municipal corporation by its ordinances to make an act or acts offenses within its chartered limits which are already a violation of state laws. See State v. Williams, 11 S. C. 292; City Council v. O'Donnell, 29 S. C., at page 368, 7 S. E. 523, I L. R. A. 632, 13 Am. St. Rep. 728; also City of Greenville v. Kemmis, 58 S. C. 427, 36 S. E. 727, 50 L. R. A. 725. The exceptions of appellant, where conformable to the foregoing views, are sustained. It follows, therefore, that the judgment of the circuit court must be reversed. It is the judgment of this court that the judgment of the circuit court be reversed, and the case be remanded for the enforcement of the judgment of the city council of Abbeville against the defendant, J. D. Leopard. Abstracts City of Jordan v. Nicolin. (Supreme Court of Minnesota, Nov. 15, 1901.) [87 N. W. Rep. 915.] Saloon Open after Hours-Ordinance Punishing Offense Covered by General Law. The defendant was convicted of the offense of keeping his saloon open after 11 o'clock at night, contrary to the ordinance of the city: held, acts which are punishable under the general laws of the state may also be punished by municipal ordinance, and the latter is valid though the punishment prescribed in each be not the same. Same Same Validity. The ordinance here in question is valid, and the complaint for its violation does not charge two offenses. (Syllabus by the Court.) Appeal from district court, Scott county; Francis Cadwell, Judge. Henry Nicolin was convicted of violating an ordinance of the city of Jordan, and appeals. Affirmed. F. C. Irwin, for appellant. F. J. Leonard, for respondent. START, C. J. The defendant was convicted in justice court of the offense of keeping his saloon open after 11 o'clock at night, contrary to the ordinance of the city of Jordan. He appealed from the judgment to the district court of the county of Scott upon questions of law alone. Judgment was entered in the district court affirming the judgment of the justice court, and the defendant appealed therefrom to this court. The assignments of error raise the question of the validity of the ordinance by virtue of which the defendant was convicted. The city council of the city of Jordan has full power to impose penalties and punishment and enforce the same against any person who may violate any ordinance enacted by it, and such ordinances are declared to have the force of law, provided they be not repugnant to the laws of the United States or of this state; also by ordinance to license and regulate all persons dealing in intoxicating liquors. Sp. Laws 1891, c. 4, subc. 4, §§ 4, 5. So much of the ordinance in question as is here material is to the effect that any person licensed to deal in intoxicating liquors shall keep his saloon closed from II o'clock at night of each day until 5 o'clock the next morning, and no intoxicating liquors shall be sold in the saloon during the time it is required to be kept closed, and, further, that any person violating any of the provisions of the ordinance shall pay a fine of not less than $10 nor more than $100, and costs, and in default of such payment be committed to the county jail until payment is made, not exceeding 90 days. The complaint upon which the defendant was convicted charged that he was duly licensed to sell intoxicating liquors, and kept his saloon open, and not closed, between the hours of 11 o'clock of the night of a day named and 5 o'clock the next morning, contrary to the ordinance, and "against the form of the statute in such case made and provided, and against the peace and dignity of the state of Minnesota." |