*86 By the Court.
Lumpkin, J.delivering the opinion.
Can a municipal corporation legislate criminaliicr upon a case fully covered by a State Law?
I am aware that decisions may be found to support the affirmative of the foregoing proposition. 1. Wend 237; 16 Ala. Rep. 400; 8 Ib. 515; Bay. Rep. 382; 11. Mo. 61; 12 B. Munroe 25. Without stopping to investigate the applicability of these precedents to the point under enquiry, I ask, what limit will you set to this power? If it may legislate by an ordinance for any one offence, may it not for every crime embraced within the penal code ? Arson in a town or city is provided for by the public law; why not pass a by-law prescribing another mode of trial, and a different punishment for the same offence if committed within their limits? So of the crimes of forgery, counterfeiting, perjury, &c. Such I am sure, has not been the understanding of the country.
Under the general grant of power delegated by the Act of 1849, the city authorities may cover all cases not provided for by the paramount authorities of the State. Their code already fills a volume of some five hundred pages. All those ordinances regulating cemeteries, commons, markets, vehicles, fires, exhibitions, lamps, licenses, water-works, watch, police, city taxes, city officers, health, nuisances, &c., are legitimate and proper. Nay, I might go further, and concede, that where the State law defines an offence generally, and prescribes a punishment, without reference to the place where it is committed, in town or country, and the act when committed in the streets and public places of the city, would be attended with circumstances of aggravation, such as an affray, for instance, the corporate authorities with a view to suppress this special mischief, might probably provide against it by ordinance; because that ingredient or concomitant of the crime might not be supposed to be included in the State Law. And this is going quite far enough.
*87But in 1843, the Legislature saw fit to enact a law for the identical offence for which Christopher Hussey was tried, for the city of Savannah and other sea-port towns in Georgia. Does it not seem anomalous that under the general grant of power, which I have already quoted, that they intended to authorize this corporation to enact a penal ordinance, for the trial and punishment of this identical offence in Savannah ?
Again, the Act of 1849, declares that the Police Court of Savannah shall have cognizance in -the first instance, of all offences against the laws of this State, touching said city. Harboring seamen is an offence against the laws of the State, touching said city.
By the third section of the Act of 1843, Cobb 32, it is provided that “if any person or persons shall harbor, secrete, entertain, lodge or keep, or shall directly or indirectly suffer to be harbored, secreted, entertained, lodged or kept in and about his house or premises, any articled seaman or mariner or apprentice, knowing the said seaman, or mariner or apprentice to have deserted from his ship, or vessel, such person or persons shall, on conviction, be fined a sum of not more than five hundred dollars, or imprisoned at the discretion of the Court.”
Why was not the defendant tried for a 'violation of this act, under the jurisdiction given to the Police Court in 1849, instead of for a violation of the city ordinance, which is in conflict with the State law upon the same subject? When the State law declares, that this offence in the city of Savannah, shall be tried in a particular way, and, on conviction, punished in a certain sum, what right have the Mayor and Aldermen to change or alter the statute? In the language of the presiding Judge, “the law of the State is the law of the corporation upon this subject; and they cannot make another law for themselves.”
It is argued that the inhabitants of the city can be twice taxed, 'and why not twice punished for the same offence. That the Legislature can levy a tax for the State an aduthorize *88the corporation to do the same for the city. The obvious reply is, that the tax is not twice levied for the same purpose. Suppose the general Tax Act should provide, that a certain tax in addition to the State tax, should be assessed on the citizens of Savannah, for city purposes; would it not require a most plain and palpable grant of power, to entitle the corporation to raise another tax for the same purpose ? And that is the case which we are considering.
And this brings me to the only remaining view which I shall present on this subject. Suppose the State and the city may legislate for precisely the same offence, and no more nor no less, which I only do for the sake of the argument; may it not be fairly inferred, that it was not so intended in the present instance ? This offence of harboring seamen, was created by the Colonial Act of 1766 — Prince 755; which act expired by its own limitation; but was revived in 1785. In 1831, Cobb 623, the jurisdiction to try this offence was taken from the justices of the peace and given to the city authorities.. In 1843, the Legislature passed an act defining and punishing this offence; under this act, the defendant was to be tried as all other persons are, accused of crime. The Act of 1S43 expressly repeals the Act of 1766, as revived in 1785.
This means something. I am fully persuaded myself that the Legislature intended to assume the entire control and jurisdiction over this subject; and the mere fact of giving jurisdiction to the Police Court to try this offence as committed against the State, did not either authorize the ordinance, or deprive the accused of being tried by a jury of the country.
And I again gladly adopt the reasoning of the able Judge, who decided this case, upon this point. He remarks: “what a singular state of things would exist, were the contrary hypothesis true. A man harboring an articled seaman in Savannah, may be tried by the Mayor, without a jury, whereas, another citizen accused of the same offence in any county of the interior, cannot be tried, except by a jury, and even ill Savannah, he is tried by a jury or not, according to cir*89cumstances over which he has neither choice nor control.”
And the same observation may have been made as to the punishment. The fine is restricted to either one sum or another, accordingly as he may be tried before the Mayor, or the City, or Superior Court; yet the individual is the same as well as the offence, without any circumstance of aggravation or extenuation, as to the place of its commission, or in any other particular.
It is needless now to make the question, whether the Legislature could confer a duplicate power of punishing crimes upon a Corporation. I am satisfied the Legislature has not delegated any such doubtful power, to say the least of it, in the present case.
Judgment affirmed.