Cabiness v. City of Tuscaloosa

• Decision Date: 19 August 1958
• Docket Number: 6 Div. 593
• Citation: 39 Ala.App. 538,104 So.2d 778
• Parties: Mrs. H. M. CABINESS v. CITY OF TUSCALOOSA.
• Court: Alabama Court of Appeals

Page 778

104 So.2d 778

39 Ala.App. 538

Mrs. H. M. CABINESS v. CITY OF TUSCALOOSA.

6 Div. 593.

Court of Appeals of Alabama.

Aug. 19, 1958.

Davis & Donald, Tuscaloosa, for appellant.

Skidmore & Davidson, Tuscaloosa, for appellee.

PRICE, Judge.

Ordinance No. 583, as amended, of the City of Tuscaloosa, under which defendant was convicted, provides, inter alia, 'that it shall be unlawful for any person to sell, have, keep or expose or offer for sale, for human consumption, any meat or meat products, unless same shall have been slaughtered in accordance with the regulations of this ordinance, in a licensed slaughter house holding a permit from the City of Tuscaloosa, and shall have been duly inspected, passed and stamped or tagged by the City Meat Inspector; provided, however, that this shall not apply to meat slaughtered elsewhere and shipped into the City of Tuscaloosa, which has been inspected and stamped or tagged by a United States Government Inspector.'

The complaint charged that defendant 'did, within twelve (12) months before the beginning of the prosecution in this case, within the police jurisdiction of the City of Tuscaloosa, Alabama, unlawfully sell, have, keep, or expose or offer for sale, for human consumption, meat or meat products, to-wit, pork and pork sausage or pork or pork sausage, which said meat or meat products had not been slaughtered in a licensed slaughtering house holding a permit from the City of Tuscaloosa, Alabama, and had not been duly inspected, passed and stamped or tagged by the meat inspector of the City of Tuscaloosa, contrary to the provisions of Ordinance No. 583, as amended,' etc.

The court's action in overruling demurrer to the complaint is made the basis of all the assignments of error. Argument in brief is confined to two grounds of demurrer, therefore, the grounds not argued are deemed waived. Jefferson County v. City of Birmingham, 248 Ala. 319, 27 So.2d 584; Hackney v. Yarbrough, 233 Ala. 365, 172 So. 107.

The argued grounds are:

'13. For that said ordinance is inconsistent with the general law of the State of Alabama.'

'14. For that said ordinance is contrary to the laws of the State of Alabama.'

These are general grounds and not sufficiently specific to put the trial court in error for overruling the demurrer. Section 236, Title 7, Code 1940; Home Insurance Company v. City of Birmingham, 236 Ala. 41, 180 So. 783; Snellings v. Jones, 33 Ala.App. 301, 33 So.2d 371.

However, even if it be conceded, which we do not, that the grounds of demurrer were sufficiently specific to invite our review, we are of opinion that there is no merit in the contention that the provisions of the ordinance are inconsistent with the State laws, and therefore void because violative of Section 89, Constitution of 190 ¹.

It is insisted that the said ordinance is inconsistent with or contrary to the following general laws of the State:

Section 6, Title 22, Code 1940, 'No local board of health, or other executive body for the exercise of public health functions, other than the county board of health, shall be established or exist in any county or municipality. Nor shall any municipality have a municipal health officer or other like officer. Nor shall any board, body, or organization, or any official or person, acting or claiming to be under any federal authority or acting without claim of federal or state authority, engage in any public health work, except under the supervision and control of the state board of health.'

Section 8, Title 22, Code, supra: 'It shall be the duty of the county boards of health in their respective counties * * * (1) To supervise the enforcement of the health laws of the state, including all ordinances or rules and regulations of municipalities * * *.'

Section 94, Title 22, Code, supra: 'In the event that any of the provisions of the title of this Code relating to municipal corporations shall be in conflict with any of * * * the general health and quarantine laws of the state, the provisions of this chapter and such general health and quarantine laws shall prevail.'

By Section 499, Title 37, Code 1940, all cities and towns are expressly granted 'the power to establish, control, and regulate slaughter houses and pens, and to confine the same to a specified limit in or outside of the city or town, or prohibit the same within the police jurisdiction of the city or town, and to regulate the sale of fresh meats within the city or town, whether butchered therein or not, and to establish a system of...