Bell v. Town of Jonesboro

• Decision Date: 21 December 1911
• Citation: 57 So. 138,3 Ala.App. 652
• Parties: BELL v. TOWN OF JONESBORO.
• Court: Alabama Court of Appeals

57 So. 138

3 Ala.App. 652

BELL v. TOWN OF JONESBORO.

Court of Appeals of Alabama

December 21, 1911

Appeal from City Court of Bessemer; J. C. B. Gwin, Judge.

Sam Bell was convicted of violating an ordinance of the town of Jonesboro, and he appeals. Affirmed.

The complaint was as follows: "Comes the town of Jonesboro solicitor, and complains that within 60 days before the commencement of this prosecution Sam Bell did violate the terms of Ordinance No. 149 of the town of Jonesboro, in substance as follows:

"An ordinance to be entitled an ordinance to further suppress the evil of intemperance, and secure obedience to and the enforcement of and to prevent the evasion of the laws of the town of Jonesboro for the promotion of temperance, and for the prohibition or manufacture of and traffic in an unlawful disposition of prohibited liquors and beverages to provide for the abatement of liquor nuisances and the seizure and forfeiture of such liquors and beverages, to prosecute the proceedings in said case.

"Section 1. Be it ordained by the town council of Jonesboro that, if any person shall willfully let or suffer another person to use any premises which he owns or controls for the illegal sale or manufacture or other unlawful disposition of spirituous, vinous or malt liquors prohibited by the laws of the town of Jonesboro, to be sold or otherwise disposed of in said town or the police jurisdiction thereof, and for the illegal storage or maintaining of such liquor, shall be guilty of a misdemeanor.

"Sec 2. * * *

"Sec 3. That the keeping of liquors or beverages prohibited by the laws of the town of Jonesboro to be sold or otherwise disposed of in any building not used exclusively for a dwelling shall be prima facie evidence that they are kept for sale, or with intent to sell the same, contrary to law.

"Sec. 28. That any violation of any provision of this act, when no other penalty is provided for, shall be punishable by a fine of not less than $50, nor more than $100, to which may be added, at the discretion of the recorder, or other officer holding municipal court, trying the case, imprisonment in the town jail, or at hard labor for the town of Jonesboro, for not more than six months; this being the general penal clause of this article."

The demurrers were: (1 and 2) The improper passage and recording of the ordinance. (3) That the ordinance is neither set out in substance nor in so many words. (4) Conclusion of the pleader. (5) In direct conflict with the state statute. (6) Ordinance was improperly recorded, if recorded at all. (7) Fatal variance between complaint and warrant and affidavit under which the defendant was tried in the recorder's court. (8) Insufficient number of councilmen voting for the ordinance. (9 and 10) Go to the validity of the ordinance for various reasons.

The pleas were: (1) The general issue. (2) "For further answer to the complaint, defendant says that the ordinance set out was invalid, in this: That on February 15, 1910, the counsel met in the town of Jonesboro with only three of its members present, and with its mayor presiding at that time, there being five members of such council holding office; that, as appears from the minutes pasted in the Book of Minutes at page 157, there was an ordinance offered, entitled 'An ordinance ordered to suppress the evils of intemperance,' by one councilman, J. M. Smithson, moving to place the same on its first reading, which was seconded by Jack Sanders, another councilman, and said vote following said reading, and was seconded by only three, to wit, Jack Sanders, J. M. Smithson, and O. C. Walls, when as a matter of fact there was no such councilman by such name as O. C. Walls; that on said same night or time the said ordinance was put on its last reading and final passage with said same parties voting for the same; that at no time did the mayor vote on the final passage of said ordinance. And defendant avers that the town of Jonesboro is a town of less than 6,000 population, and the defendant avers that at no time has said ordinance been recorded, but merely pasted in or attached by leaf fasteners to page 103 of the book; that said ordinance does not bear a certificate of its passage and promulgation, by showing that there was no newspaper published in the town of Jonesboro, and that notices were posted at the post office, giving the time, date, or manner of how the same was posted. Therefore said ordinance is absolutely void for said reason." Pleas 3 and 4 set up the character and evidence to be offered against the defendant, and allege that it was obtained by search and seizure.

Replications to the second plea are as follows: "That said Ordinance No. 149, on which this prosecution is based, was duly passed on February 15, 1910; that there were present a majority of the members of said council; that the minutes show that J. M. Smithson, Jack Sanders, and Q. C. Walls were members of the council; that Alderman Q. C. Walls is the identical and same person as O. C. Walls; that unanimous consent was given for the suspension of the rule, and all three aldermen present voted for the ordinance, and so did the mayor, John D. Martin; that the ordinance was published by posting three copies in three public places, one copy in each place at the office of the mayor; that there was on such date no post office in the town of Jonesboro, nor was there any newspaper published in said town; that the mayor voted for the passage of the ordinance; that the ordinance was and is bound and recorded in a book of ordinances of the town of Jonesboro and duly certified by George H. Bumgardner, clerk of the town."

The demurrers are that there is nothing showing the substance of the...