#### DANE *vs.*MAYOR &c. OF MOBILE.

[proceedings for violation of municipal ordinance.]

1. *Construction of municipal ordinance requiring public carnages to be lighted when on duty by night.*— Under the ordinance of the city of Mobile, imposing a fine “on the owner or driver” of a public carriage, hack or cab, for a failure to have the lamps of his vehicle lighted when on duty by night, (Municipal Laws of Mobile, 105, § 86,) it is no defense to the owner, that he was not present, and had no knowledge of the alleged violation of the law by his negro driver.

2. *Practice on error in appeal or certiorari eases.*— In appeal and *certiorari,*cases, which, when the amount in controversy is less than $20, are tried by the court without the intervention of a jury, (Code, *\*2369,) the judgment of the circuit court will not be reversed on error, unless its decision on the facts is shown to bo manifestly wrong.

Appeal from the Circuit Court of Mobile.

Tried before the Hon. C. W. Rapier.

The appellant in this case was prosecuted, before the mayor of the city of Mobile, for an alleged violation of the municipal ordinance which requires public carriages to be lighted when on duty by night; and was fined ¡$10. He removed the case, by *certiorari,*to the circuit court, where, as the bill of exceptions shows, the following evidence was adduced: “ The plaintiff introduced as a witness one M. D. Cleveland, a police officer of the city, who testified, that his brother and another person, who were not policemen, saw the defendant’s cab standing in the street in front of a bouse, with its lamps not lighted; that they took the cab, horse and negro driver in charge, and drove a short distance to his (witness’) house; that he then ordered the driver, who was a slave, to light his lamps, which he did; and that he then got into the cab, drove to the city guard-house, and reported the defendant. The defendant then introduced as a witness one Busbee, *305who testified, that on the night mentioned by said Cleveland, having occasion to go. to a remote part of the city, he employed the defendant’s cab; that both of the lamps of said cab were then burning;, that after riding within about one hundred yards of the place where he was going, he ordered the driver to stop, so that be might light his cigar by the lamp; that while he was endeavoring to light his cigar, both lamps were blown out by a strong wind then prevailing; that he then ordered the negro to drive on to his destination, as he was in a hurry; that he got out of the cab on arriving at the place where he was to stop, and told the driver to wait for him a few minutes, until he transacted somb business with, the gentleman whom he had called to see; that the driver was furnished with matches, and that it was his (witness’) fault alone that the lamps were blown out. The city ordinance was also read in evidence, as published in the Municipal Laws of Mobile, pages 105-6. This being all the evidence, the defendant asked the court for judgment in his favor; which the court declined to grant, and gave judgment for the plaintiff, for $10; and to this ruling of the court the defendant excepted.”

Overall & Moulton, for appellant.

Chamberlain & Hall, *contra.*

E. W. WALKEE, J.

By an ordinance of the city of Mobile it is provided, that the lamps of every carriage, hack, or cab kept for hire, “ shall be lighted every night, moonlight or dark, at dusk, and continue so lighted, while in the streets or elsewhere, on hire ; under penalty of not less than five, nor more than fifty dollars, to be imposed on the owner or driver.” — Municipal Laws of Mobile, 105, § 86. The effect of this ordinance is to make the owner of a cab liable for the failure of his driver to keep the lamps lighted. Consequently, it is no answer to this proceeding, that Dane was not present, and had no knowledge of the violation of law complained of.

[2.] Whether the driver had violated the ordinance in question, was a question of fact, to be tried by the court, *306without the intervention of a *jury.'*— Code, *§ 2369. In*this class of cases, we think the proper practice is, not to reverse the judgment, unless the decision of the court below on the question of fact is manifestly wrong. As we cannot say that this is so in the present case, the judgment of the circuit court is affirmed.