City of Birmingham v. Brown
| Decision Date | 01 June 1915 |
| Docket Number | 875 |
| Citation | 69 So. 263,13 Ala.App. 654 |
| Parties | CITY OF BIRMINGHAM v. BROWN. |
| Court | Alabama Court of Appeals |
On Rehearing, June 15, 1915
Appeal from Criminal Court, Jefferson County; Samuel E. Greene Judge.
Prosecution by the City of Birmingham against J.S. Brown, for violation of a municipal ordinance. From a judgment quashing the complaint and discharging defendant, the city appeals. Affirmed.
Romaine Boyd and Joseph P. Mudd, both of Birmingham, for appellant.
A Latady, of Birmingham, for appellee.
The sole question in this case is: Within what time is a prosecution for a violation of a city ordinance barred?
Our Municipal Code (), which is now the charter of the towns and cities of the state, is silent upon the question of limitations for such prosecutions.
The Supreme Court of Georgia, acting upon the common-law principle embodied in the maxim "Nullus tempus occurrit regem," have held that, where the municipal charter fails to provide a limitation, no lapse of time after the commission of an offense in violation of a city ordinance will bar a prosecution therefor, unless the ordinance itself, or other ordinances of the city, prescribe some limitation. Battle v. Marietta, 118 Ga. 242, 44 S.E. 994; Bell v. Forsyth, 126 Ga. 443, 55 S.E. 230; Norris v. Thompson (Ga.App.) 83 S.E. 866; Ramsey v. Atlanta (Ga.App.) 83 S.E. 148. In other words, the holding is that, in the absence of charter limitations, the municipality may fix such limitations as it may choose--1 year, l0 years, 20 years, or any other period--or none at all, and that whatever the municipality does in this particular will govern the matter.
We can conceive of the correctness of this doctrine when applied to a condition different from that here obtaining--that is, when applied in a state or nation whose public policy is against limitations--for instance, when applied at common law before the origin of statutes of limitations, at a time when the policy of the mother country was to let no time bar prosecutions for public offenses--when "no time ran against the king," who was the state. Then it might well be said, we think, that no time should run against the municipalities, which were but the instrumentalities of the king--the state--in the administration of government. But here, in a state whose positively declared public policy is and ever has been to fix a limitation upon all prosecutions for offenses in violation of its criminal statutes, except offenses of the gravest nature (those punishable capitally and arson, forgery, counterfeiting, second degree murder, and first degree manslaughter--Code,§§ 7344-7351), it seems to us, although we have great respect for the opinion of the Supreme Court of Georgia, that for us to follow that court and thereby to lay down a doctrine which would countenance no limitations whatever upon prosecutions for a violation of the penal ordinances of a municipality--mere minor infractions and against only the laws of the mere creature of the state, who, in making such laws, exercised only a limited portion of the sovereignty of the state, and that alone by the authority of the state--would be to say that the state, by its silence as to limitation, intended to confer, and did confer, upon its creature, the municipality, the authority to establish a public policy within its borders as to a violation of its penal ordinances wholly at variance with that existing by force of positive law as the settled public policy of the state with respect to a violation of its own criminal statutes.
This state, in its wisdom, has seen fit to declare, through its Legislature, that, as to minor offenses against its laws, the peace, repose, and good order of society can the better be subserved and conserved by fixing a limitation to prosecutions therefor. Is it to be supposed, then, that the state, through its Legislature, by its silence on the subject of limitations as to prosecutions for violations of municipal ordinances, intended to permit a different policy as to them, and to leave it to the municipality to determine whether, in this particular, it will follow the policy of the state or adopt an entirely different policy, one of no limitation at all or one of a different limitation from that of the state? Our state Constitution (Const. 1901, § 89) provides:
"The Legislature shall not have power to authorize any municipal corporation to pass any laws inconsistent with the laws of this state."
Keeping within the spirit and letter of this provision, the Legislature, in granting a general charter to the municipalities of this state (Pol. Code,§§ 1046-1460), under which appellant city is operating, has provided therein as follows:
"Municipal corporations shall have power from time to time to adopt ordinances and resolutions not inconsistent with the laws of this 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." Political Code, § 1251.
Under these provisions, if not also upon common-law principles, the ordinances of a municipality, in order to be valid, must be not only not inconsistent with the laws of the state, but also not inconsistent with the public policy of the state. Georgia Fruit Exchange v. Turnipseed, 9 Ala.App. 128, 62 So. 542; Hewlett v. Camp, 115 Ala. 499, 22 So. 137; 21 Am. & Eng.Ency.Law (2d Ed.) 980, § 7, and cases cited in notes 7 and 8.
Consequently it is our opinion that where the municipal charter fixes no limitation upon prosecutions for violations of city ordinances, the public policy of the state, as expressed in the general statutes of the state fixing limitations upon prosecutions for misdemeanors which are crimes against state laws, that are punishable by fine and by jail and hard-labor sentences for the county, and which are consequently analogous to offenses against municipal ordinances, that are also punishable by fine and by jail and hard-labor sentences, though for the city, must and does obtain so far as applicable as to violations of city ordinances, and that any city ordinance prescribing a different limitation, or no limitation at all, is void as against the public policy of the state.
The public policy of the state on the subject of limitation of prosecutions for misdemeanors is expressed in two general statutes; one (Code, § 7347) providing that prosecutions in the circuit, city, or county court for misdemeanors must be commenced within 12 months next after the commission of the offense, and the other (Code, § 7348) providing that prosecutions before a justice of the peace for misdemeanors within his jurisdiction must be commenced within 60 days next after the commission of the offense. One or the other of these limitations--either the 12-month or the 60-day limitation--must (there being no limitation fixed in the municipal charter) obtain as to prosecutions for violation of city ordinances, not as a statute, but as a matter of public policy, in order that the policy of repose existing in the state as to prosecutions may prevail in the municipality, as otherwise and without one or the other of the restrictions mentioned there is no restriction whatever on the city, and it could adopt a policy entirely at variance with that of the state, a policy of no limitation at all or of a different limitation.
Of course, we are not to be understood as deciding a question not before us, and that is that the state could not, by statute, prescribe a different limitation for prosecutions for a violation of municipal ordinances from the limitation it has prescribed for prosecutions of misdemeanors, but merely as holding that when the state law is silent on the subject of the limitation of prosecutions for violations of municipal ordinances, the public policy of the state, as declared in its general statutes fixing limitations as to prosecutions for misdemeanors, must prevail as to prosecutions for violations of municipal ordinances.
If, then, one or the other of the limitations mentioned as fixed by statute for the prosecution of misdemeanors must, as a matter of public policy, operate as to prosecutions for the violation of municipal ordinances, which shall it be--the 12-month limitation, which is the limitation existing as to such prosecutions when commenced in the circuit, city, or county court, or the 60-day limitation, which is the limitation existing when such prosecutions are commenced in a justice of the peace court? We think the statutes of this state, which establish a recorder's court and which define and declare the powers, duties, and jurisdiction of a recorder, before whom only can a prosecution for a violation of a municipal ordinance be commenced, answer this question and show impliedly that it was the legislative purpose, in declaring, as the Legislature did in such statutes, that the recorder, "in criminal and quasi criminal matters," which includes trials for the violation of municipal ordinances, should "have the power of an ex officio justice of the peace" to limit prosecutions before a recorder for a violation of municipal ordinances to 60 days, the limit fixed by statute, as seen, for prosecutions before a justice of misdemeanors within his jurisdiction. Section 1215 of the Political Code thus declares:
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