Bouyer v. City of Enterprise

• Decision Date: 16 April 1912
• Citation: 58 So. 755,4 Ala. App. 276
• Parties: BOUYER v. CITY OF ENTERPRISE.
• Court: Alabama Court of Appeals

58 So. 755

4 Ala.App. 276

BOUYER v. CITY OF ENTERPRISE.

Court of Appeals of Alabama

April 16, 1912

Appeal from Circuit Court, Coffee County; H. A. Pearce, Judge.

G. W Bouyer was convicted of violating a municipal ordinance, and he appeals.Reversed and remanded.

The affidavit was as follows: "Affiant says that he has probable cause for believing and does believe that within the city limits, or within the police jurisdiction of the city of Enterprise, G. W. Bouyer did sell, exchange, or otherwise dispose of spirituous, vinous, or malt liquors contrary to the law and ordinances of the city of Enterprise, and contrary to section _______ of the City Code of Enterprise."The demurrer raises the point that the affidavit charges no offense.

O. C Doster, of Enterprise, and H. L. Martin, of Ozark, for appellant.

R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for appellee.

WALKER, P.J.

The complaint in this case sufficiently averred the existence of a municipal ordinance under which either of the acts with which the defendant was plainly charged in the alternative constituted an offense against the municipality; and it was not subject to the demurrer interposed to it.Bell v Jonesboro,57 So. 139;Turner v. Town of Lineville2 Ala. App. 454, 56 So. 603;Rosenberg v. City of Selma,168 Ala. 195, 52 So. 742.

But the ordinance offered in evidence did not correspond with the averments of the affidavit or complaint as to its nature or import.The charge as made imported the existence of a law or ordinance of the city of Enterprise under which either a sale, an exchange, or other disposition of spirituous vinous, or malt liquors was prohibited.The only ordinance offered in evidence was one enacted in the year 1903, which was in the following words: "Any person who shall engage in or carry on the business of a retail liquor dealer, or who shall sell by retail any spirituous, vinous or malt liquors, or other intoxicating drinks, without first having taken out a license, must, on conviction, be fined not less than ten nor more than one hundred dollars."This ordinance did not prohibit a disposition of such liquors otherwise than by a sale, or in the way of engaging in or carrying on the business of a retail dealer in them, without a license.It did not prohibit the giving away of such liquors, for instance.Williams v. State,91 Ala. 14, 8 So. 668;23 Cyc. 181.It did not evidence the...