City of Bessemer v. Eidge

• Decision Date: 09 April 1909
• Citation: 162 Ala. 201,50 So. 270
• Parties: CITY OF BESSEMER v. EIDGE.
• Court: Alabama Supreme Court

50 So. 270

162 Ala. 201

CITY OF BESSEMER v. EIDGE.

Supreme Court of Alabama

April 9, 1909

Rehearing Denied June 30, 1909.

Appeal from City Court of Bessemer; William Jackson, Judge.

W. S Eidge, having been convicted for violation of an ordinance of the City of Bessemer, was thereafter discharged on a writ of habeas corpus, and the City appeals. Affirmed.

Dowdell C.J., and Denson and McClellan, JJ., dissenting in part.

Estes Jones & Welch, for appellant.

Thomas T. Huey and G. F. Goodwyn, for appellee.

MAYFIELD J.

Appellee was arrested, prosecuted, and convicted, and sentenced to hard labor, for violating an ordinance of the city of Bessemer, after which he was released and discharged by the judge of the city court of Bessemer on a writ of habeas corpus; such judge declaring the ordinance under which the prosecution was had, to be void. From that order or judgment the city of Bessemer prosecutes this appeal.

It is claimed by counsel that this appeal is taken under section 1220 of the Code of 1907; it being section 66 of the Municipal Code bill passed by the last session of the Legislature, of date August 13, 1907. If this were true, the appeal could not be entertained. That provision only applies to cases taken to the circuit or other courts of like jurisdiction by appeal from the municipal court, and not to proceedings like this, originating in the circuit court or before a judge of such court. But the appeal does lie under section 6245, Code 1907 (Town of Elba v. Rhodes, 142 Ala. 689, 38 So. 807); the city being "the party aggrieved" in this particular case.

The ordinance in question is clearly void. It not only exceeds the powers of the municipality, which is enough to render it invalid, but it probably exceeds the power of the Legislature itself. It attempts to prohibit the keeping of any spirituous, vinous, malt, or intoxicating liquors, drinks, or beverages in any house, building, or place where people resort, public or private, for lawful or unlawful purposes, and then provides for the seizure and confiscation of such liquors, drinks, or beverages without due process of law, as well as for the arrest of any and all persons suspected of violating such ordinance with or without warrant. There is a futile attempt to comply with the Constitution and statutes, as to seizures, searches, and arrests, by section 5 of the ordinance; but it is wholly insufficient.

Section 5 or our own Bill of Rights provides "that the people shall be secure in their persons, houses, papers and possessions from unreasonable seizure or searches, and that no warrants shall issue to search any place or to seize any person or thing without probable cause, supported by oath or affirmation." The fourth amendment to the Constitution of the United States reads as follows: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." These provisions have been construed as follows:

Search warrants are not allowed for the purpose of obtaining evidence, but they should be allowed only after the evidence has been obtained. There are exceptions to this rule, a few specific cases, where that which is the subject of the crime is supposed to be concealed, and the public has an interest in finding it and destroying it. Such are searches for stolen goods, or for smuggled goods in violation of revenue law, and implements for gaming, counterfeiting, lottery lickets, liquors made in violation of revenue law or sold in violation of prohibition law, obscene books and papers, explosives, injurious materials, etc. "It is oftentimes better that crimes should go unpunished than that citizens should be liable to have their premises invaded, their private books and papers exposed or destroyed at the hands of ignorant and suspicious men, under the direction of ministerial officers who may bring such persons as he pleases and who selects them on account of their physical courage rather than their sensitive regard for the rights or feelings of other people." Cooley, Const. Lim. 372.

The common-law maxim, "Every man's house is his castle," is guaranteed by the constitutional provision of "the right of the people to be secure in their person, houses, papers and effects against unreasonable searches and seizures," and that "no warrant shall issue except upon probable cause, supported by oath or affirmation, describing the place to be searched and the person or things to be seized." It was said by Lord Chatham that "the poorest man in his cottage may bid defiance to all the forces of the crown; it may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the king may not enter, and all his forces dare not cross the threshold of the ruined tenement."

A search warrant must be issued only by a court of competent jurisdiction, it must be issued to the officer of the law and not to the aggrieved party, it can be granted only upon probable cause supported by oath or affirmation, and the warrant must describe the premises and the person or things to be taken. Bishop, Crim. Proc. 240-246; Tiedeman's Lim. Pol. Pow. 462. "To enter a man's house by virtue of a warrant in order to procure evidence against him is worse than Spanish Inquisition, a law under which no Englishman would wish to live an hour," said Lord Camden. Search warrants may be issued for the release of females in houses of ill fame, for the recovery of children enticed away from their parents, and for the unlawful detention of any person. When it is to search for a person suffering from a dangerous or infectious disease, the warrant can be issued in aid of civil process.

Brickell C.J., in the case of Cunningham v. Baker, 104 Ala. 169, 16 So. 70, 53 Am. St. Rep. 27, says: "As a general rule at common law an arrest could not be made without a warrant. If a felony was committed, or a breach of the peace threatened or committed, within the view of an officer authorized to arrest, it was his duty to arrest without warrant and carry the offender before a magistrate; or, if a felony had been committed, and there was probable cause to believe a particular person was the offender, he could be arrested without warrant. Holley v. Mix, 3 Wend. (N. Y.) 350, 20 Am. Dec. 702; Burns v. Erben, 40 N.Y. 463. The matter of arrests is now the subject of statutory regulation, largely affirmatory of the rules of the common law. Cr. Code, §§ 4260, 4274. The statutes, and the corresponding rules of the common law, have primary, if not exclusive, relation to the administration of the criminal laws of the state. If an arrest be legal, under what conditions and for what purposes there may be a search of the person arrested, and what things found upon his person may be taken into possession by the officer making the arrest, was the subject of very full and deliberate examination and exposition in Ex parte Hurn, 92 Ala. 102, 9 So. 515, 13 L. R. A. 120, 25 Am. St. Rep. 23. A repetition of what is there said is not now necessary. A search of the person arrested is justifiable only as an incident to a lawful arrest. If the arrest be unlawful, the search is unlawful, and is aggravated by...