The morning news. [volume] (Savannah, Ga.) 1887-1900, 1897-11-21


for whom as a lawyer, man and presid-
ing officer he had great respect.
''As reported, the decision was that the
| ordinance of the city, enacted in 1854, or
at least so much of it as applied 70 the
case before the court, was invalid be-
| cause of a state statute which covered
the charge" said Mr.. Adams The ordi-
nance gave the court jurisdiction and the
absence of jurisdiction must. therefore, be
| predicated upon the invalidity of the or
I dinance. 1t seems to me that it is never
the province of a recorders court to de-
clare an ordinance. or any part of 1t, in
| valid unless this is undisputed. If it be
ever proper, it seems to me that this ought
not to be done except in a very clear case
| and after an opportunity to the city's
legal representative to show its validity,
| 1t ought to be borne in mind that a de-
| PENDANT has the right of certiorari if the
ordinance be sustained but If the decision
| be against the ordinance, the city is with
| out any remedy in the case decided and
| must abide the decision, whether right
or wrong. 1t is the rule even with the
| highest courts to sustain and enforce
| laws plainly expressed, unless their invali
dty is clear and beyond any reasonable
| doubt"
When asked his opinion of the ordinance
Mr.. Adams said that, with great defer
| ence to the recorder, who is an excellent
! lawyer, he thought it valid. THE law
| invoked" he said lis not new law and
was not passed in 1895. 1t can be found
| in the first Code of Georgia, that went
| into effect Jan. l. 1868, and in all the sub
an Af nnr, iNr n
| the last, it is in a chapter devoted to the
| incorporation of counties, county con-
! tracts, property and claims, and, as
used in them, refers clearly to the public
! buildings of a county. 1t may be suggest
! ed that the last codifiers intended to make
! the provision applicable to all public
! buildings. This | doubt very much, but,
assuming this was the purpose, and the
| effect of the adoption of the last code, I
/ would still think that the present city or
dinance is valid. 1t frequently happens
| that the same act may violate a city or
| dinance and also a state law, and this
| has been repeatedly recognized by all the
| courts.
1T requires very slight difference Of
| ten between an ordinance and state stat
ute in order to save the ordinance. For eX-
| ample, the supreme court sustained the
| conviction of a party who kept his bar
| room open on Sunday in Atlanta under an
ordinance against any dealer who kept
| open doors on Sunday" although Atlanta
was without any authority to punish for
| keeping open a tipping house on the
Lords day. which is a state offense, and
| although what the party did was viola
| ton of the state statute. In another case
| from Atlanta, the state statute made the
! unlawful sale Of liquors an offense and
vet a party was convicted under an Ordi
nance against the keeping of liquors for
sale, and this conviction was sustained by
| our supreme court, although, in point of
| fact, he had sold the liquors. These and
other cases, which might be mentioned,
! show that it does not take much of diff
| ference between a statute and an ordinance
| to sustain the ordinance, although the
| thing done and punished under the ordi-
nance may, in point of fact, be viola
| ton of the state law.
"In the Waycross case, which seems TO
have been used in the recorders court, the
| supreme court used thiss language THE
| offense for which the plaintiff in error was
| convicted by the municipal court of Way
cross was exactly the thing which the
act of 1898 made misdemeanor.
There are two differences between the
ordinance and the statute in the case in
CURED about. A minor one is that the or
| dinance Furnishes the defacing of any
building in the city of Savannah, whether
it be public or private property The
statute is confined TO public building, its
1
| difference is that a man cannot be guilty
under the statute unless he 'designedly de-
| faces that is to say his design must be
| to deface the building. Under the or.
dinance this element is not an essential.
| Under the statute, if court came to the
| conclusion that although the building was
! defaced in the intentional doing of some
act and vet the party accused had no
| purpose or design of defacng, he would
be entitled to his acquittal. Under the
| city ordinance, however, if the building
was defaced, although the court might
think that the party did not contemplate
| it's DETACHMENT he might still be properly
convicted. For example: Suppose a man
| intended to show his authority or had any
! improper motive, and Intentionally did an
act which in point of fact, defaced the
| building, he would not be entitled to his
acquittal, under the ordinance, simply be-
| cause it might appear that he did not
really intend to deface the building and
did not suppose that what he was doing
would have this effect. 1t is more diff
| cult to convict under the state law than
under the ordinance.
I'm case reported in the seventy-sec-
| ond volume of the Supreme Court Re-
| ports, the court, in unfolding an ordi-
nance when it was assailed upon the
! ground that a state statute applied, no.
/ ticed that the defendant could not have
| been convicted under the code making
! this as one of the tests of difference.
In the present case, if it appeared that the
accused Intentionally did something
! which, in point of fact, defaced the build
ing, and was not justified in what he was
doing, he would have been guilty under
| the ordinance without any further con-
sideration, although, under the statute,
! he could not be convicted unless it APP
| peared, beyond a reasonable doubt, that
he designed to deface the building"
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INSPECTED NJ. AND MS WIARVBS.