Bazelle v. Mayor Council of the City of Athens

Full title: BAZELLE v. MAYOR COUNCIL OF THE CITY OF ATHENS

Court: Court of Appeals of Georgia

Date published: May 16, 1966

149 S.E.2d 724 (Ga. Ct. App. 1966)

149 S.E.2d 724

Opinion

41889.

ARGUED APRIL 6, 1966.

DECIDED MAY 16, 1966. REHEARING DENIED MAY 31, 1966.

Violation of city building ordinance. Clarke Superior Court. Before Judge Carpenter from Ocmulgee Circuit.

Guy B. Scott, Jr., for appellant.

Joseph J. Gaines, for appellee.

PANNELL, Judge.

Appellant was tried and convicted in the Recorder's Court of the City of Athens for alleged violation of certain enumerated sections of "Southern Standard Building Code, Part VI, Housing, adopted as ordinance of said City of Athens." Certiorari was overruled by the superior court and the appeal is from that judgment. Held:

1. The ordinance, as amended prior to the time of the alleged offenses, provides that one convicted for a violation thereof be punished in accordance with § 9-4 of the Code of the City of Athens. Prior to the amendment, the ordinance had defined the offenses as a "misdemeanor" and provided for punishment under State law. In view of the amendment, the recorder's court had jurisdiction to try the case.

2. "It is well settled that one or more sections of an ordinance may be unconstitutional and other sections constitutional; and where the allegations as to the unconstitutionality of an ordinance fail to definitely state what section of the ordinance is unconstitutional, such allegations are too indefinite to raise any question for decision as to the unconstitutionality of the ordinance. Glover v. City of Rome, 173 Ga. 239 ( 160 S.E. 249), and cit." Anthony v. City of Atlanta, 66 Ga. App. 504, 505 ( 18 S.E.2d 81). The purported attacks on the ordinance here are, under the above ruling, insufficient to raise the question of the constitutionality of the ordinance.

3. The evidence was sufficient to authorize the finding by the judge of the recorder's court that the defendant had violated the ordinance as charged.

Judgment affirmed. Frankum, J., concurs. Felton, C. J., concurs specially.

ARGUED APRIL 6, 1966 — DECIDED MAY 16, 1966 — REHEARING DENIED MAY 31, 1966 — CERT. APPLIED FOR.

FELTON, Chief Judge, concurring specially.

In my opinion the trial judge considered the constitutional attack and the other grounds of attack against the ordinance as definite enough to warrant his adjudication of the questions. As I construe his judgment he held the ordinance to be constitutional and sufficiently definite. I agree with his conclusions and judgment. I also agree that the evidence was sufficient to authorize the finding of the recorder.