
    THE MAYOR & COUNCIL OF THE CITY OF COLUMBUS vs. ARNOLD.
    1. One cannot be tried and convicted for an offense different from that for which he is prosecuted or called upon to answer.
    
      Certiorari, in Muscogee Superior Court. Decision by Judge Workill, at November Term, 1859.
    This was a certiorari sued out by John D. Arnold, against the Mayor of the city of Columbus, to reverse and set aside an order or sentence imposing a fine of ten dollars on plaintiff for exposing to sale and selling meats in said city outside of the market, contrary to the ordinances thereof. The summons was to appear and show cause why he should not be fined for a “violation of the 44th section of the city ordinances in refusing to pay the fees and for exposing his meat for sale by 6 o’clock, a. m., in said city.” Upon the trial, so much of the charge or accusation as related to exposing meat for sale, etc., was dismissed by the Mayor, and the case continued. Afterwards, at a subsequent term or meeting of the Mayor’s Court, the case was taken up for a final disposition or trial, when plaintiff moved to dismiss the same, on the ground that said 44th section had been super-ceded and annulled prior to the commission of the alleged offense. The motion to dismiss was refused, and this constitutes the first ground of exception and application for certiorari. The case proceeded, and after hearing evidence, the Mayor imposed a fine of ten dollars on plaintiff in certiorari for a violation of an ordinance passed in June, 1858, laying and imposing a tax of 25 cents on every quarter of beef, and 10 cents on every quarter of mutton, kid, lamb, pork and venison sold at any other place within the corporate limits of the city than at the market-house.
    To which sentence and judgment Arnold excepted, and thereupon sued out his certiorari.
    The presiding Judge of the Superior Court before whom, the certiorari was heard, sustained the same, and ordered the sentence of the Mayor to be reversed and set aside, on the ground that it was illegal and without authority of law. To which decision counsel for the Mayor excepted.
    John Pjeabody, for plaintiff in error.
    L. T.< Downing, contra.
    
   By the Court.

Lyon, J.,

delivering the opinion.

The defendant in error was summoned to appear before the Mayor and City Council of the city of Columbus, to answer to a charge of the violation of the 44th section of the city ordinances, in refusing to pay the fees and exposing his meat for sale by 6 o’clock, A. m., in said city. On the hearing before the Mayor, the defendant was adjudged guilty, and fined for exposing to sale and selling meats in said city outside of the market. This judgment was carried to the Superior Court by certiorari i-or review, and the judgment of' the Mayor was overruled on the hearing before Judge Worrill, and this latter judgment was brought before us by bill of exceptions. Upon consideration, we affirm his judgment. The ordinance on which the defendant was adjudged to be guilty, was passed long subsequently to the one under which defendant was prosecuted, besides the offense for which he was fined, was a totally different one from the one which he was called upon to answer; and hence, the judgment was necessarily wrong.

Judgment affirmed.  