Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-05-04
KASSELL ". SAVANNAH.
Supreme Court of Georgia
January "a, 1900.


CITY CANNOT, WITHOUT Elk,
PREcs LEGIsJ tTIvE AUTHOR
ITY. ENACT A VALID ORDI-
NANCE Furnishing AN ACT
WHICH is AN OFFENsE AGAINST
A PENAL STATUTE OF THE
STATE.
The court says:
1t appears from the record that on
February 25 1891, the Mayor and alder
men of the city of Savannah adopted
an ordinance entitled "An ordinance
to provide for the observance of the
Sabbath or Lords day." prescribing, in
substance. that any person who kept
within the city limits bar-room. or
other place for the sale at retail of in
toxicating liquors of any character,
shall keep such place of business shut
and closed from IL o'clock Saturday
night until II o'clock the following
Sunday night 1t was further provided
in the ordinance that it should not be
lawful for any person within the limits
of the city of Savannah to sell in any
quantity, or by any sort of device, any
'spirituous or-ifftoxleatiHs-H
any character from IL o'clock Saturday
night to IL o'clock Sunday night, ex-
u
sell the same as medicine, under pre-
scription OF regular physician. 1t
seems, therefore, that while the de-
PENDANT below was tried for violating
both the provisions of the ordinance
above mentioned, to wit: First. keep
ing open her barroom and place of
business on Sunday; and. second. vio
lating the city ordinance against SELL
ing liquor on Sunday, she was con-
victed upon the latter charge only. 1t
appears from the evidence in the rec
ord that, If she was guilty Of selling
liquor in violation of the ordinance, this
sale took place from her barroom, and
therefore must have been in pursuit OF
her business, or the work Of her ordi-
nary calling on the Sabbath. One de-
tense made on the trial OF the case
below, and insisted upon on the petit
ton for certiorar as a reason why the
Judgment of conviction should be set
aside. was that the hayor and alder
men of the city had no jurisdiction to
try the defendant under the charges set
forth. which constitute a violation Of
penal laws of the State. Another
ground Of error alleged is that the YER
dict is contrary to evidence. and. Dc
any offense was committed, 1t was in
violation OF State law.
1t may be considered as principle
we'll established by the adjudications of
this court that a municipal corporation
cannot; without legislative authority.
pass an ordinance for the punishment
Of an act which constitutes an offense
against penal statute of the State.
That the facts relied on for convic-
ton constitute penal offense against
the State law, we think there can be
no doubt. 1t appears from the record
that the defendant below was engaged
In the business and regular occupation
of keeping a barroom for the purpose
of retailing spirituous and other intox-
icating liquors. Even If the veidence
was sufficient to authorize the conclu-
sion that she sold liquors on the day
charged, this sale took place from her
barroom. and was necessarily in the
pursuit of her ordinary daily vocation.
The State law in existence when this
conviction was had Is embodied In sec
ton 1879 of the Code of 1882, and pro-
vides that ANY tradesman, artiflcer
workman or laborer, or other person
whatever. who shall pursue their busi-
ness or work Of their ordinary callings
upon the Lords day (works Of neces-