The Pensacola journal. (Pensacola, Fla.) 1898-1985, 1911-06-28

That the amendment to the city
charter authorizing the city to license
the playing of baseball on Sunday is
constitutional and that the legislature
clearly intended giving the city coun-
ell of Pensacola the authority to pass
the ordinance in question. is the gist of
an opinion of Hon. Scott NJ. Loftin,
county solicitor, to whom Justice of
the Peace r. l.. Nickelsen had applied
for advice on the subject. In the
opinion Of the county solicitor, the
Justice of the peace was entirely JUS
tifiable in refusing to issue q warrant
against the manager or other pro-
moters of the baseball park.
THE OPINION.
The opinion of Hon. Scott NJ. Loftin,
which is a very comprehensive one, is
as follows:
Pensacola, Fla, June 2s, 1911.
r. l. Nickelsen, Esq, Justice Of the
Peace, City.
Sir: Relative to your inquiry as to
my opinion as to the, validity of the
baseball in the city of Pensacola on
Sunday, would say:
Chapter 5436, acts of 1906, makes it
criminal offense to play baseball on
Sunday in the state of Florida.
The recent legislature passed an act
approved June 3rd, 1911, entitled, "An
act relating to the issuance of bonds
and special tax bills; the assessment,
levy and collection of taxes; the licen-
sing, regulation and prohibition of
businesses, occupations, trades and
amusements, and the abatement of
nuisances by the city of Pensacola; and
also to further alter and increase the
said city in other matters pertaining
to its general welfare and to revise,
supersede or repeal conflicting laws"
Paragraph two (2} of section eigh-
teen Qs) provides that the mayor and
council shall have power by ordinance
ito pass ordinances. superseding or re-
pealing existing laws, licensing regu-
lating or prohibiting baseball playing,
or similar amusements within the lin
it's of the city"
Section twenty ehree (23) provides
that all laws and parts of laws in
conflict herewith be, and the same are
hereby repealed
conferred, the mayor and council on
June 18th, 1911, adopted an ordinance
licensing and regulating baseball play
ing in the city Of Pensacola, which Or
dinance authorizes exhibitions of base
ball on Sunday after twelve o'clock
noon in enclosed parks upon the pay
ment of license tax required by said
ordinance.
The question arises as to the power
of the legislature to confer upon the
city authority to enact an ordinance
repeating or superseding a general law
of the state. and second, as to whether
the provision in the charter authorized
the city to pass the ordinance in Ques-
tion.
EFFECTS OF ORDINANCE.
The general rule is that a munich
m IN
dict with general statutes, but an ordi-
nance enacted by a municipal corpora
ton in pursuance Of special charter
authority has the same force and ef-
feet as a law within the municipal
boundaries, as though 1t had been
ordinance has been repeatedly sus-
tained by the courts. although contra
vening and in conflict with general
laws on the ground that IL is eQuiva-
lent to a special statute repugnant to
general one, and therefore operates
as an implied repeal OF a general law
within the municipal territory: 2S Cyc.
S66; 20 Am. Eng. Enc. L. 113s; Inger-
soil Pub. Cor. 1851; Dillon Munc. Cor.
Sec. Ss-114-367; Smith Munc- Cor. 4s4;
Abbott's Munc. Cor. 1343; Tiedeman
Munc Cor. Sec. 1857; McQuillin Munc-
Ord. Sec. 17-343; Cooley Constl. Limtn.
1913; Horr and Bemis Munc. Pol. Ord.
Sec 9S.
IN Davis VS. State (2d Tex. app. 425)
the court held that the power con-
ferred by special act on the corporate
authorities of Waco to license houses
Of prostitution operated TO exempt
holders of licenses granted under 1t
from punishment under the general
law, making the keeping Of such houses
a misdem eanor.
In st. Johnsbury versus thompson
(5e Vermont 800, 9 Atlantic SD the
court said: eff the bylaw is author
lied by the charter, it has the effect of
special law Of the legislature within
the limits of a village, and supersedes
the general law upon the subject OF
victualing- houses therein; for the char
ter giving the village power 20 pass a
bylaw inconsistent with and repug-
nant to the general law by necessary
Implication operated to repeal the gen
eraI law within the territorial limits
of the villa ge on the principle that pro-
visions Of different statutes which are
in conflict with each other cannot
stand together: and in the absence of
anything showing a different intent on
the part Of the legislature, general leg
islatior upon a particular subject must
give way to later inconsistent special
LEGISLATION on the same subject"
See also In re Smell So Vermont POT,
1 Atlantic 566.
In State versus Clark, "a Missouri
II, II Am. Rep. All, the legislature
conferred upon the city Of St Louis
power to regulate or suppress bawdy
houses. Held that this operated as
repeal within the limits Of the city of
st. Louis Of the general statute. pro-
hibiting the keeping of bawdy- houses,