Opinion
32947, 32948.
DECIDED MAY 2, 1950.
Certiorari; from Chatham Superior Court — Judge D. S. Atkinson. December 31, 1949.
Oliver, Oliver Davis, for plaintiff in error.
John J. Bouhan, contra.
1. ( a) Where, as here, the petition for certiorari has not been sanctioned by the judge of the superior court, it could not be lawfully filed in such court and therefore forms no part of the record and could not be brought to this court as a part thereof. Under such circumstances, this court cannot determine whether the refusal to sanction the petition for certiorari was or was not erroneous, the copy of the petition not being verified by the judge. Herrington v. Valdosta, 56 Ga. App. 489 ( 192 S.E. 927); Elsas v. Clay, 67 Ga. 327; James v. Davis, 76 Ga. 100; Fleming v. Bainbridge, 84 Ga. 622 ( 10 S.E. 1098); Lake v. Kellum, 99 Ga. 130 ( 24 S.E. 874); Evans v. Bloodworth, 105 Ga. 835 ( 31 S.E. 778); Charles v. Bishop, 30 Ga. App. 242 ( 117 S.E. 275). Accordingly, on motions made by the defendants in error, the bills of exceptions here must be dismissed.
( b) This is so, notwithstanding the fact that an attempt was made to bring up the petition for certiorari together with the exhibits as a part of the record, and that the record also shows an entry by the Deputy Clerk of Chatham County marking the said petition filed. Examination of the record in Herrington v. Valdosta, supra, shows that a like entry by the clerk of the court marking the petition for certiorari in that case filed in office was also before the court, and that Judge Broyles, in stating, "Such petition, not having been sanctioned, could not lawfully be filed," had under consideration the fact that an attempt by the clerk of the court to file the petition had been made. This exact point has therefore been decided and is controlling in the instant case, and the ruling is to the effect that an illegal attempt on the part of the clerk of the court to file a petition for certiorari which has not been sanctioned, being contrary to law, cannot be considered by this court, as the clerk in the trial court had no power to certify the same.
2. ( a) Counsel for the plaintiff in error requests that, should the opinion of this court be as stated in the first headnote, this court direct the trial court to permit an amendment to the bill of exceptions incorporating the petition for certiorari therein, and further direct the judge of the trial court to certify such amendment, and the clerk of the court to transmit the same. However, "when a judge has once certified a bill of exceptions he loses jurisdiction of the case and is without authority to give an additional certificate." See Flynn v. Gunnels, 60 Ga. App. 29 (3) ( 2 S.E.2d 728), Blige v. State, 72 Ga. App. 438 (1, b) ( 33 S.E.2d 917), and many cases cited under Code (Ann.) § 6-806.
( b) These cases cannot come under the exception stated in Code § 6-810 for the reason that more than 20 days has elapsed since the filing of the bills of exceptions. See Cordray v. Savannah Union Station Co., 134 Ga. 865 (1-b) ( 68 S.E. 697).
( c) For the reasons stated in headnote 2 (a), these cases cannot come under the exception of Code § 6-1304, which provides that no writ of error shall be dismissed in the appellate court on any ground which can be removed during the term of the court to which said writ of error is returnable.
( d) These cases cannot come under the exception of Code § 6-1309, which provides that no writ of error shall be dismissed in the appellate court when, by an amendment to the bill of exceptions, any imperfection or omission of necessary and proper allegations could be corrected from the record in the case. The petition for certiorari, not having been sanctioned, was no part of the record. "A good transcript [of the record] will aid a defective bill, but where both are deficient, neither can aid the other." Hardin v. Lovelace, 79 Ga. 209 (4) ( 5 S.E. 493).
DECIDED MAY 2, 1950.
Virgil Snipes, the plaintiff in error in these cases, and defendant in the trial court, was tried, convicted and sentenced in the Recorder's Court of Chatham County on the charges of "Disorderly conduct. Running disorderly place of business, the Penn Bar" (Case No. 32948) and "Selling malt beverages without a license, November 2, 1949, Penn Bar" (Case No. 32947). The evidence submitted on the trial of the disorderly conduct charge authorizes findings of fact as follows: That the defendant operated a beer drinking establishment known as the Penn Bar; that on the night of November 1 certain of his customers began quarreling, fighting and behaving in a boisterous manner on his premises; that he ejected them, telling them "to get out before somebody called the police"; that he instructed one of his employees to call the police; that the police did not receive a call; that the customers left the premises when he so ordered them but continued their fighting elsewhere in the neighborhood. The arresting officer was asked the following question: "Mr. Crowder, you had no evidence, or observation otherwise, of your own knowledge, that Mr. Snipes in any way suffered or permitted this disorderly conduct, did you?" to which the officer replied, "Only as I said, he refused to call the police." There was no other evidence in the record to indicate that the defendant was guilty of permitting disorderly conduct.
Section 4 (b) of Ordinance 47 of Chatham County, as approved by the County Commissioners, states as follows: "All boisterous, noisy and disorderly conduct in any place of business or other place where the beverages provided for in this ordinance are permitted to be sold, is expressly forbidden by this ordinance, and every person, firm or corporation conducting any place of business for which a permit or license has been granted, and for which the license fee has been paid, shall be subject to have the said permit or license revoked, in the manner provided for in this ordinance, for permitting any such boisterous, noisy or disorderly conduct in such place of business." Section 5 provides that when any person violating this ordinance is convicted, the Chief of Police of Chatham County is vested with power to revoke any permit issued by virtue of this ordinance, which revocation shall continue until the next meeting of the Commissioners of Chatham County, when such person may appear and show cause why the revocation should not be confirmed, the person so convicted shall no longer engage in such business, and the amount paid by him as a license fee shall be forfeited to the county commission, and, if he shall thereafter continue to do business, shall be subject to prosecution and punished accordingly.
The evidence in Case No. 32947 authorizes findings of fact as follows: That immediately following the disorderly conduct charge as set forth above, the chief of police took up the defendant's license, permitting him to sell malt beverages, the fee on which had been paid. This apparently happened before the conviction of the defendant on a charge of disorderly conduct. The chief of police then turned the license over to the county commissioners' office. The defendant came to him the next day and was so informed. On that same evening the bar was in operation and crowded with people drinking beer, and he was at that time arrested on the charge of selling malt beverages without a license.
The headnotes in these cases do not require elaboration, and under the authorities cited therein the bills of exceptions must be dismissed.
Counsel for the defendant contends that the legislative enactment under the authority of which the ordinance in question was passed (Ga. L., 1919, p. 605), insofar as it apparently seeks to give to the County Commissioners of Chatham County the power to pass ordinances of a penal character, and enforce the same by fine and imprisonment, is an unlawful delegation of legislative authority and therefore void under the provisions of our Constitution. In support of this contention he cites the apparently very good authority of Long v. State, 202 Ga. 235 ( 42 S.E.2d 729), Bibb County v. Garrett, 204 Ga. 817 ( 51 S.E.2d 658), and Glustrom v. State, 206 Ga. 734 ( 58 S.E.2d, 534). This question was not raised in the trial court and for that reason could not be raised on appeal for the first time. See Borough of Atlanta v. Reynolds, 43 Ga. App. 519 ( 159 S.E. 609); Board of Education of Houston County v. Board of Trustees of Fort Valley Consol. School Dist., 170 Ga. 509 (2) ( 153 S.E. 214). Further, this is a question of which the Supreme Court and not this court has jurisdiction, since it involves the constitutionality of a statute of this State. Fountain v. Ragan-Malone Co., 14 Ga. App. 287 ( 80 S.E. 725).
Counsel for the defendant further contends that in any event the Commissioners of Chatham County had no authority to pass an ordinance subjecting a person operating such an establishment to prosecution and punishment thereunder for operating without a license, inasmuch as this offense is covered under a general law (Code, Ann. Supp., §§ 58-726 and 58-732). In this connection he cites the apparently very good authority of Collier v. State, 54 Ga. App. 346 ( 187 S.E. 843); Ellison v. Doyal, 182 Ga. 803(2) (187 S.E. 11); Harbin v. Holcomb, 181 Ga. 800 ( 184 S.E. 603).
The defendant's counsel further contends that, even should the Commissioners of Chatham County have the authority to pass an ordinance defining and punishing disorderly conduct in the manner set forth herein, it does not follow that disorderly conduct is proved merely by the failure of the defendant, who was operating a retail establishment where beer was sold, to summon police officers to his establishment, inasmuch as the ordinance itself does not so declare.
These are considerations which this court is not in position to decide in the present state of the record, for the reasons hereinbefore outlined.
Bills of exceptions dismissed. MacIntyre, P.J., and Gardner, J., concur.