
    33902.
    Brinson v. City of Atlanta.
   Carlisle, J.

1. Where, in a petition for certiorari to the Superior Court of Pulton County from the Recorder’s Court of the City of Atlanta, it appears that the defendant, on April 23, 1951, was charged with the violation. of an ordinance of that city which provides in part, “No person shall occupy the seat of a motor vehicle upon the public streets of the City of Atlanta, immediately under the steering wheel, while under the influence of intoxicating liquors or drugs,” and the defendant’s counsel made a motion that the charge be dismissed on the ground that the ordinance “is [an] undertaking by the City of Atlanta to enact a city ordinance which is. in direct conflict with violation of the State [is an effort to punish acts committed within the limits of the municipality which are crimes against the State],” and such motion is overruled and the defendant is tried and convicted under such ordinance, and error is assigned in the petition for certiorari upon the overruling of the defendant’s motion to dismiss, and the conviction is alleged in the petition for certiorari to bo null and void on the ground that the City of Atlanta had no jurisdiction to try and convict the defendant, it is error for the superior court to overrule the petition for certiorari; for

2. The ordinance under which the defendant was tried and convicted is unconstitutional, null, and void, (Giles v. Gibson, 208 Ga. 850, 69 S. E. 2d, 774), as an effort to punish acts committed within the limits of the municipality which are crimes against the State; and

3. The Recorder of the City of Atlanta erred in refusing, upon motion, to dismiss the charge, as any conviction under the ordinance in question would be contrary to law. Harris v. City of Atlanta, 71 Ga. App. 23 (29 S. E. 2d, 715); Douglas v. Town of Kestler; 14 Ga. App. 612 (81 S. E. 803); Collins v. Hall, 92 Ga. 411 (17 S. E. 622). And see Forbes v. Mayor &c. of Savannah, 160 Ga. 701, 702 (4) (128 S. E. 806); and also Maner v. Dykes, 183 Ga. 118 (2) (187 S. E. 699), and City of Cedartown v. Pickett, 193 Ga. 840, 843 (20 S. E. 2d, 263).

Decided April 9, 1952

Rehearing denied April 22, 1952.

James B. Venable, H. C. Morgan, John L. Bespess, for plaintiff in error.

Frank Grizzard, Frank A. Bowers, Norman H. Fudge, amici curiae.

J. C. Savage, J. C. Murphy, J. M. B. Bloodworth, John E. Feagin, Henry L. Bowden, contra.

Judgment reversed.

Gardner, P.J., and Townsend, J., concur.  