Wright v. City of Atlanta , 61 Ga. App. 650 ( 1940 )

1. A petition for certiorari seeking a review by the superior court of a judgment of a recorder's court is fatally defective if it does not set out a copy of the ordinance (Howell v. State, 13 Ga. App. 74, 76, 78 S.E. 859) upon which the charge or summons is predicated, or else deny its existence. Porter v. Thomasville, 16 Ga. App. 313 (85 S.E. 283); Hill v. Atlanta, 125 Ga. 697, 698 (54 S.E. 354, 5 Ann. Cas. 614).

2. While a municipal corporation can not, in the absence of express legislative authority (Hood v. Van Glahn, 88 Ga. 405, 14 S.E. 564), enact valid ordinances for the punishment of acts which constitute offenses against the penal laws of the State (Moran v. Atlanta, 102 Ga. 840 (2) 843, 30 S.E. 298; Marshall v. Griffin, 173 Ga. 782, 161 S.E. 622; Callaway v. Mims, 5 Ga. App. 9, 13, 62 S.E. 654), yet it may punish for acts penalized by an ordinance where there enters into the act some ingredient not necessary to constitute the statutory offense (Howell v. State, supra); but the validity of such an ordinance can not be raised in a petition for certiorari, seeking a review of the judgment of the recorder's court because of impingement of the ordinance on the field covered by the State statute, unless such petition contains a copy of the ordinance or a denial of its existence.

3. The court did not err in dismissing the certiorari where the petition failed to set out a copy of the ordinance or to deny its existence.

Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.

DECIDED FEBRUARY 7, 1940.