Borok v. City of Birmingham

• Decision Date: 17 December 1914
• Docket Number: 872
• Citation: 191 Ala. 75,67 So. 389
• Parties: BOROK v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

67 So. 389

191 Ala. 75

BOROK v. CITY OF BIRMINGHAM.

No. 872

Supreme Court of Alabama

December 17, 1914

Appeal from Criminal Court, Jefferson County; S.E. Greene, Judge.

R.A Borok was convicted of violation of a city ordinance, and he appeals. Transferred from the Court of Appeals. Affirmed.

Samuel B. Stern, of Birmingham, for appellant.

Joseph P. Mudd, of Birmingham, for appellee.

McCLELLAN J.

On appeal to the circuit court, the defendant (appellant) was adjudged guilty of the violation of an ordinance of the city of Birmingham. No objection to the sufficiency of the complaint on which defendant was found guilty by the recorder having been made in the recorder's court, objection could not be made thereto in the circuit court on appeal. Mayor, etc., v. O'Hearn, 149 Ala. 307, 42 So 836, 13 Ann.Cas. 1131; Aderhold v. Mayor, etc., 99 Ala. 521, 12 So. 472; McKinstry v. Tuscaloosa, 172 Ala. 344, 54 So. 629. The affidavit filed in the recorder's court contained in its first "count" every element with respect to probable cause that could be exacted in a criminal prosecution; and this "count" was treated on the trial in the criminal court of Jefferson county, after appeal, as importing the charge there tried and under it guilt was determined as of an offense against the municipal ordinance. So, whether the other "count" in the affidavit, or the statement filed in the criminal court--both directed to the purpose of charging a like offense to that set forth in the first "count" in the affidavit--were sufficient or not, is entirely immaterial on this appeal. There was no averment in the mentioned first "count" asserting the manufacture of forbidden liquors by the defendant, and there was no evidence tending in any degree to show that defendant manufactured forbidden liquors; whereas, there was evidence supporting the allegation of infraction of the ordinance by the forbidden traffic in intoxicants. It cannot be assumed that the jury's verdict was rested upon any act of which there was not the slightest intimation or evidence, namely, the manufacture of forbidden liquors, which was not condemned or inhibited in the ordinance 58-C, but which was alleged in the statement filed in the criminal court.

It has been determined here that the Smith and Parks Bills (Gen.Acts 1911, pp. 249-288, 26-31), treating the manufacture, sale, etc., of intoxicants, did not operate the repeal of the Fuller and Carmichael Bills (Acts Sp.Sess.1909, pp. 8, 63), except in the particulars the former laws are inconsistent with the latter laws. Western Ry. Co. v. Capitol Brewing Co., 177 Ala. 149, 153, 59 So. 52; Allen v. State ex rel., 181 Ala. 383, 61 So. 912-913. There being no provision in the Smith and Parks Bills defining what are unlawful drinking places, the provisions of section 5 of the act approved August 9, 1909 (Acts Sp.Sess.1909, pp. 10, 11), defining unlawful drinking places were not repealed by the Smith and Parks Bills, except in so far as regularly issued licenses to maintain drinking places afford the legal right to maintain such places. Unless legally licensed under existing laws, every place defined in said section 5 as an unlawful drinking place is an unlawful drinking place and is subject to the provisions in that respect of the laws enacted at the Special Session of the Legislature held in 1909.

By section 1251 of the Political Code (codifying what is known as the Municipal Code), the amplest authority was conferred on municipal governing bodies to enact ordinances to the ends therein defined. That section is as follows:

"Municipal corporations shall have power from time to time to adopt ordinances and resolutions not inconsistent with the laws of the state, to carry into effect or discharge the powers and duties conferred by this chapter, and to provide for the safety, preserve the health, promote the prosperity, improve the morals, order, comfort, and convenience of the inhabitants of the municipality, and to enforce obedience to such ordinances by fine not exceeding one hundred dollars

...