Moore v. City of Thomasville

Broyles, J.

1. Where a penal ordinance of a city has been in effect for several years, and where one who is being tried for a violation thereof asserts its invalidity because of the fact that the minutes of the city council showing its passage were not approved in writing by the mayor, but were only attested by the clerk of that body, and where there is no requirement in the charter or in the ordinances of the city that the mayor shall so approve the minutes, held that such omission on his part does not invalidate the ordinance. 2 Dillon on Municipal Corporations, § 607 (p. 949), and oases there cited. It has been held that even where there are charter and statutory provisions that the minutes of the council must be signed by the mayor and cleric, their . failure so to do will not render the ordinance invalid. “ Statutory and charter provisions that ordinance shall be recorded, signed by the presiding officer, and attested by the clerk are directory only in their nature, and a failure to observe them will not invalidate an ordinance or prevent its taking immediate effect.” 2 Dill. Mun. Corp. § 607; Landes v. State, 160 Ind. 479 (67 N. E. 189); Allen v. Davenport, 107 Iowa, 90 (77 N. W. 532); Whalin v. McComb, 76 Ill. 49. Within this principle, it has been held that a statutory requirement that the mayor or other presiding officer shall sign the ordinance or the record thereof is directory only, and that his omission to sign does not affect the validity of the ordinance. 2. Dill. Mun. Corp. § 607; Commonwealth v. Williams, 120 Ky. 315 (86 S. W. 553); Stevenson v. Bay City, 26 Mich. 44; Blanchard v. Bissell, 11 Ohio St. 96; Aurora Water Co. v. Aurora, 129 Mo. 540 (31 S. W. 946).

2. It will be presumed that a municipal ordinance is valid, and the burden of establishing as invalidity is on the person asserting it. Penal Code, § 1020; 8 Enc. Ev. 808; 2 Dill. Mun. Corp. § 649, p. 989; Harmon v. City of Chicago, 140 Ill. 374 (11) (29 N. E. 732); People v. Chicago R. Co., 189 Ill. 397 (59 N. E. 946); Chicago R. Co. v. Carlinville, 103 Ill. App. 251. “In considering the question of validity of ordinances, courts are inclined to sustain rather than to overthrow them.” 2 Dill. Mun. Corp. § 646, p. 985. In this case the presumption that the ordinance in question was regularly and legally passed was not overcome by the evidence introduced. It is true that the proof raised a doubt upon this point, but it was not sufficient to affirmatively show the contrary. This question then became an issue of fact for determination by the mayor (exercising the functions of both judge and jury), and was conclusively settled by his judgment, in favor of the validity of the ordinance.

(a) It was purely, a question of fact, and therefore for the mayor to determine, whether the ordinance mentioned in the minutes of council of December 23, 1907, as having been read the third time and passed, was the same ordinance referred to in the minutes of council of December 16, 1907, as having been introduced and read the second time,— which ordinance prohibited the keeping of intoxicating liquors for the purpose of illegal sale; and there was evidence to sustain the mayor’s finding that the minutes of both of these meetings of council referred to the same ordinance. At all events, the burden was upon the accused to prove that the ordinance shown by the minutes of December 23 to have been passed was not the same one shown by the minutes of December -16 to have been introduced and read the second time.

3. While a penal statute should be strictly construed, the construction should be a reasonable one; and where two or more constructions could be given, that one should be adopted which will strengthen the law and make it effective, rather than one which will “draw its teeth” and render it unable to “bite.” The penalty section of the ordinance in question provides that “any person . . . violating this section shall be punished as proscribed in section 1 of the general penal ordinance; ” and that section of the general penal ordinance prescribes punishment for other offenses, and does not refer to violations of the ordinance involved in this case. The only reasonable construction of this penalty section is that it means that violations of the ordinance shall be punished as violations of section 1 of the general penal ordinance are punished.

Decided October 21, 1915;

Certiorari; from Thomas superior court — Judge Thomas. December 23, 1914.

G. B. Hay, for plaintiff in error. Louis L. Moore, contra.

4. This court in this case decided to pass upon the merits of the question raised as, to the invalidity of the ordinance under -which the accused was convicted, but need not have considered the point at all, for if the ordinance is invalid as contended by plaintiff in error, it follows that the judgment of conviction is absolutely void, and “certiorari lies, not to correct that which is void, but only that which is irregular or erroneous.” Sawyer v. Blakely, 2 Ga. App. 159 (3), 161 (58 S. E. 399).

5. The assignments of error other than those dealt with above are without merit. The evidence authorized the judgment of the mayor, and the judge of the superior court did not err in refusing to sanction the certiorari.

Judgment affirmed.

Russell, O. J., dissents.