Atkins v. City of Tarrant City
| Decision Date | 27 March 1979 |
| Docket Number | 6 Div. 862 |
| Citation | 369 So.2d 322 |
| Parties | Dennis ATKINS, Jr. v. CITY OF TARRANT CITY. |
| Court | Alabama Court of Criminal Appeals |
Henry B. Welch, Birmingham, for appellant.
Robert R. Sexton of Barnett, Tingle, Noble & Sexton, Birmingham, for appellee.
This is an appeal from a conviction for "riding in a motor vehicle while intoxicated," under Traffic Ordinance No. 617, passed by the city of Tarrant City, Alabama, on May 2, 1977, which was fully in force on the date of the offense.
The appeal before the Jefferson County Circuit Court was determined upon an agreed stipulation of facts, and the matter is now before this court for review on that stipulation.
The stipulation reads as follows (omitting formal parts):
The ordinance complained of reads as follows:
The appellant, Dennis Atkins, Jr., contends that City Ordinance # 617 of Tarrant City, Alabama, is unconstitutional because it "goes beyond, enlarges and extends" the scope of the State statute regulating the consumption of alcoholic beverages, specifically, the "drunk driving" statute, found in § 32-5-170, Code of Alabama 1975, and the public intoxication statute, § 13-6-15, Code of Alabama 1975.
The question presented here is whether the ordinance under review is inconsistent with the general laws of the State of Alabama. If so, the ordinance is void. § 11-45-1, Code of Alabama 1975, Turner v. Town of Lineville, 2 Ala.App. 454, 56 So. 603.
The Alabama Constitution of 1901, Article 4, § 89, states:
"The legislature shall not have power to authorize any municipal corporation to pass any laws inconsistent with the general laws of this state."
In Winter v. Cain, 279 Ala. 481, 187 So.2d 237, the Supreme Court of Alabama, stated that all ordinances enacted under the legislative power delegated to the cities, should be consistent with the State laws. See also Phenix City v. Putnam, 268 Ala. 661, 109 So.2d 836; Ott v. Moody, 283 Ala. 288, 216 So.2d 177; Ligon v. City of Gadsden, 21 Ala.App. 312, 107 So. 733.
Municipalities have been given legislative authority to pass ordinances pursuant to what is commonly known as their police powers. Ott v. Moody, supra; Smith v. Town of Notasulga, 257 Ala. 382, 59 So.2d 674.
This grant is found in § 11-45-1, Code of Alabama 1975, which reads as follows:
Under this provision, a municipality cannot enact an ordinance pursuant to its police powers which is inconsistent with the general laws of the State.
We note that municipal ordinances are presumed to be constitutional and that they are not to be struck down unless invalid on their face or unless the challenging party clearly establishes their invalidity. Atlantic Oil Co. v. Town of Steele, 283 Ala. 56, 214 So.2d 331; Cudd v. City of Homewood, 284 Ala. 268, 224 So.2d 625; Sanford Service Co. v. City of Andalusia, 36 Ala.App. 74, 55 So.2d 854; Jolly v. City of Birmingham, 55 Ala.App. 603, 318 So.2d 300.
Appellee City of Tarrant City, acknowledges that a municipal corporation may not enact ordinances which are inconsistent with the general laws of the State. However, it asserts that the State has not held itself out to have exclusive jurisdiction "in the matter of regulating the rules of the road or the use of intoxicating beverages as such. . . ."
Further, the appellee maintains that the municipal ordinance in question is in no way inconsistent with State statutes governing intoxicating liquors and related offenses. The municipality insists that the ordinance is a valid exercise of its police power as it pertains to the protection of "public health, morals and safety of the community."
Whether an ordinance is inconsistent with the general law of the State is to be determined by whether the local law prohibits anything which the State law permits. Ligon v. City of Gadsden, supra. See also Kim v. Town of Orangetown, 66 Misc.2d 364, 321 N.Y.2d 724.
Under the facts in the present case, Dennis Atkins, Jr. could not have been arrested, pursuant to State or local laws, for public drunkenness. The facts clearly show that appellant was not the operator of the motor vehicle and was not outside the automobile at any time. Under Brown v. State, 38 Ala.App. 312, 82 So.2d 806, appellant could not have been arrested for public intoxication, so long as he remained inside the automobile.
Atkins did not violate any State law. There is no State "drunk passenger" statute comparable to city ordinance # 617, of Tarrant City, Alabama. § 13-6-15, Code of Alabama 1975, specifically exempts a passenger in an...
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Atchley v. State
...while on a street or road. See, also, Mechalske v. City of Trussville, Ala.Cr.App., 367 So.2d 197 (1979); Atkins v. City of Tarrant City, Ala.Cr.App., 369 So.2d 322 (1979). This interpretation of § 13-6-15 seems quite proper given the express exception in that section relating to It seems c......
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Tulley v. City of Jacksonville
...See Leu v. City of Mountain Brook, Ala. Cr.App., 386 So.2d 483, cert. denied, Ala., 386 So.2d 488 (1980) ; Atkins v. City of Tarrant City, Ala. Cr.App., 369 So.2d 322 (1979). See also Atchley v. State, Ala. Cr.App., 393 So.2d 1034 (1981) ; Plump v. City of Birmingham, Ala. Cr.App. 385 So.2d......
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Lanier v. City of Newton, Ala., 86-7331
...See Leu v. City of Mountain Brook, Ala.Cr.App. 386 So.2d 483, cert. denied, Ala., 386 So.2d 488 (1980); Atkins v. City of Tarrant City, Ala.Cr.App., 369 So.2d 322 (1979). See also Atchley v. State, Ala.Cr.App., 393 So.2d 1034 (1981); Plump v. City of Birmingham, Ala.Cr.App., 385 So.2d 1349,......
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...of public intoxication statutes as expressed in Brown v. State, (1955) Ala., 38 Ala.App. 312, 82 So.2d 806, and Atkins v. City of Tarrant City, (1979) Ala.Cr.App., 369 So.2d 322. However, in Indiana, the legislature's silence evidences its acquiescence in the existing judicial interpretatio......