Savannah morning news. [volume] (Savannah) 1868-1887, 1881-09-09


SAVANNAH, September S.-Editor Morning
Nsaos: reluctantly ask space in your col
umns for the purpose of noticing two arti-
cles which have appeared concerning the
Behrens case. Comment as to the legal
position taken by your city editor, and the
fact that the case cited by him is not appo-
site, can only be needed by non profes-
sional reader. No lawyer can question
the legal position taken by me, to-
wit: that an ordinance cannot punish
for an offense punishable by
the State law. To lawyers it must be equal
ly plain, too, the case cited in to days issue
Of your paper (Karwich VS.. Mayor and
Council of Atlanta, "A Ga.,) is not only not
case which ''conclusively settled by the Su-
preme Court Of the State nearly eleven
years ago" the incorrectness of my posi-
tion, but that, on the contrary, this Kar-
wich case is not In point, your local editor
and his informant to the contrary notwith
standing. The proposition for which | con-
tended. is not only fully sustained In the
case OF Jenkins (35 Ga, 145) but also by
73) wheresthe Supreme Court held that the
CITY Council of Columbus had no juris-
dictlon to try one for a violation Of the
statute against keeping a tipping house
open on the Sabbath day, and conviction
for such an offense before such City Coun-
ell is no bar to an indictment in the Superior
Court" OGe Of the reasons given by Judge
McCay for the decision is that the power to
punish for this offense had been assured
by the State. The injustice OF Furnishing the
citizen by the city is apparent from the lat
ter part OF the decision-that which holds |
that such punishment is no bar to q second |
punishment for the same offense by the |
State authorities. Judge 7. .. P. Charl- |
ton, as far back as 1909 (see his reports, p. |
237), decided that the city of Savannah |
could not punish for an offense punishable |
by the State law. In view of these authori- |
ties 1t would be rather remarkable thai |
our Supreme Court has decided to the con- |
trarY In A Ga. And yet the people receive |
this information from your columns. The |
quotation made is apt to nislead. A nom |
professional reader would be warranted in |
agreeing with your city editor if his atten- |
ton were confined to the extract.
The Supreme Court does hold in A Ga. |
that city may punish 'the keeping open |
by doors by dealers generally" Tor the rea-
son that there is no State law directed against |
this specific otfense. In this very decision /
1.-THE part not quoted) Chief Justice Lochrane /
Distinctly recognizes the correctness of my /
contention in these words q quote from the |
page which Immediately precedes that |
Which, dlOu6 ecSLuS W uhf6 dIbTdC5GQ tUG
attention Of the writer of to-daY's local.: |
1.-THE question in this case, ingeniously pre-
sented by our brother Jackson
Henry Jackson, Esq, the coun-
seD, 'is that municipal authorities
have no power to prevent citizen from
keeping open his door on the Sabbath day
If he keeps tipping house. The State law
forbids keeping open tipping houses on that
day, and the city has no jurisdiction over this
offense. This is clearly true (the italics are
mine). The ordinance Of the city under
which this conviction is had, recognizes the
fact, and so ordains, that the Mayor and Z
Council may not punish for violating the
State laws ON the Sabbath"
The Chief Justice then goes on to show
the difference between an ordinance direct
ed against the keeping open of doors by
dealers generally and one against
keeping open a tipping house. The
charge against Mr.. Behrens was
"having bis barroom open on Sun
day." | thought, and still think, that this
was, substantially, the specific State offense
of keeping open tipping house on the
Sabbath day." regarding a barroom as a
tippling house.
Had Mr.. Behrens been charged las is pro-
vided for in the present ordinance) with
a failure to keep shut and closed the door
of his store or shop, the Karwich case would
probably have applied. This part OF our
ordinance is general, and contemplates all
store or shop keepers, whether dealers in
liquors, groceries, dry goods or other mer-
and in the event of his trial for
such an offense Mr.. Behrens would have
been protected against further prosecution.
Before leaving this A Georgia case per-
NIT me to state what reader of your local
would never imagine-that His Honor the
Mayors attention had been called to the
case in A Georgia before its discovery by
yyritQr and we fIlllv ROCniyaOr NJ tba |
principles there decided.
l cannot refrain, Mr.. Editor, from object
ing to the statement twice made, and twice
made in a manner to clearly indicate pur-
pose to bring into prominence what your
City Editor was pleased to suppose
was inconsistency on my part, a suggestion
that had amended this very ordinance
wards attacked as lawyer an ordinance
which |, as an Alderman, had indirectly |
The fact is, that the ordinance
proposed by me was one to repeal, not
amend" that part OF this and all Ordi-
nances which gave one half the fine to the
ter of sentiment, right and pro-
prletY, and did not thereby commit
myself to the legality or justice of that part
Of the particular ordinance bearing upon
this case. The plan Of paying informers
was some years back wisely abandoned
with our police. 1t is plan which has
never met with the appreciation of the
thinking class of our people, nor of that
honest and jealous class who sometimes in
form on violators of the law from motives
of conscience aud the public good.
In conclusion, permit me to say
that nothing could have driven me to
thus trespass upon your space, but
from the fact that your two articles are cal
culated to place me in a false position, and,
ffv1pr nv h s{V41 do I rnf |
tamely submit to reiterated Measurements
OF law and facts,