Carr v. City of Conyers , 84 Ga. 287 ( 1890 )

Bleckley, Chief Justice.

1. The charge on which Carr was tried by the mayor was for “quarrelling, cursing and acting otherwise disqrderly.” It may be assumed that the city had a valid ordinance embracing the matters of this charge, as nothing to the contrary is alleged in the petition for certiorari. Phillips v. Atlanta, 78 Ga. 773. The evidence upon which the mayor founded his judgment is correctly set out in the official report. Did that evidence establish the charge? It shows no disorderly conduct on the part of Carr otherwise than by the use of words. Did his vituperative and threatening words amount to quarrelling? They were spoken in an ordinary tone. Jones, the person of whom they were spoken and to whom they were addressed, made no reply. There was no altercation, dispute, brawl or angry contest. It seems to us that it takes two to make a quarrel; that a quarrel cannot be ex parte. Certainly so, unless the speaker utters his words in a loud and angry tone. Even then his conduct would be better described as disorderly conduct by loud and angry speaking, than by denominating it quarrelling. No doubt Carr attempted to raise a quarrel, but the. attempt wholly failed. He took the initiative, but the other party declined to participate. So no quarrel ensued. Was it proved that he cursed ? His words as repeated by Jones were that he, Jones, had sworn a lie on him, and he could whip him in two minutes; that he told a lie on him in the mayor’s court, and he could whip him in five minutes. As repeated by Smith the marshal, they were that Jones swore a lie on him, and he would whip him if it took him ten years; that he swore a “dam” lie on him, or something to that effect, and he could whip him. The marshal seems not to be certain that the word “dam” was used; and Jones, who seems to testify without any doubt, makes no reference to any such word. We think the sounder conclusion in a criminal proceeding would be that the word was not used. So construing the evidence would only be giving the accused the benefit of the reasonable doubt which the mind ought to entertain on the question. What the evidence really shows is, not that the accused was quarrelling, cursing or acting otherwise disorderly, but that he violated section 4372 of the code, by using opprobrious or abusive language tending to cause a breach of the peace. But of that offence the municipal court had no jurisdiction, nor was Carr charged before the mayor with its commission.

2. The judgment passed by the mayor was that Carr pay a fine of ten dollars and costs, and upon failure to pay the same, that he work in the city chain-gang for twenty-five days and then be discharged. So much of this judgment as sought to enforce the payment of the fine by consigning the accused to the chain-gang was unwarranted, there being in the charter of Conyers no express grant of power to enforce the payment of fines by such means. Brieswick v. Brunswick, 51 Ga. 639; 1 Dillon Mun. Corp. §353 ; Horr & Bemis Mun. Pol. Ord. §155. In Cobb v. Dalton, 53 Ga. 426, the power exercised was expressly conferred. True, the charter of Conyers (Acts of 1880-1, p. 373), besides authorizing the use of a city chain-gang, adopts section 786 of the code and makes it applicable to that city. But we think the words “the council shall have power to make and pass all needful orders, by-laws, ordinances, resolutions, rules and regulations, not contrary to the constitution and laws of this State, and to prescribe, impose and enact reasonable fines, penalties and imprisonments in the county jail, or the place of imprisonment in said incorporation, if there be one, for a term not exceeding thirty days, for the violation thereof,” confer no power even to imprison for non-payment of a fine, much less to use the chain-gang as a consequence of such nonpayment. The imprisonments authorized are to be for the violation of by-laws, ordinances, etc., and not to-enforce fines for such violation. Should it be thought that, by the terms of the mayor’s sentence we are reviewing, the chain-gang is not used to collect a fine bufas an alternative punishment for the offence, we answer-that, according to the case above cited of Drieswick v. .Brunswick, such a construction of the mayor’s sentence-would be incorrect. Moreover counsel for both parties-cited us in the argument to a printed copy of the ordinances of the city of Conyers, from which it appears-that alternative punishments are not provided for,- by these ordinances or by any ordinance of the city applicable to this class of offences. We think the judge-erred in refusing to sanction the application for a certiorari. Judgment reversed.