City of Talladega v. Fitzpatrick

Citation32 So. 252,133 Ala. 613
PartiesMAYOR, ETC., OF TALLADEGA v. FITZPATRICK.
Decision Date04 June 1902
CourtAlabama Supreme Court

Appeal from city court of Talladega; G. K. Miller, Judge.

Prosecution under a city ordinance by the mayor and aldermen of Talladega against Wiley Fitzpatrick. From a judgment sustaining demurrers to the complaint, the city appeals. Reversed.

W. T Edwards and J. W. Vandiver, for appellant.

Whitson & Graham, for appellee.

HARALSON J.

The ordinance of the city under which the defendant was arrested tried and convicted, reads: "Any person who interrupts or disturbs any congregation or assemblage of people met for religious worship, by noise, profane discourse, rude or indecent behavior, or any other act at or near such place of worship, must on conviction be fined not less than one, nor more than one hundred dollars." This is a transcript of the statute on the subject making it an offense against the state to disturb religious worship, except as to the penalty imposed and that the word "willfully" is omitted in the ordinance before the word "interrupts."

The affidavit on which defendant was arrested, and the complaint in the city court, on appeal by the defendant from his conviction by the mayor, charged the offense in the language of the ordinance,--"that said defendant, on, to wit, the 28th day of July, 1901, did interrupt or disturb a congregation or assemblage of people, met for religious worship in the city of Talladega, at the Peace Baptist Church in said city, by noise, profane discourse, rude or indecent behavior, in violation of said ordinance," etc.

The defendant demurred to the complaint, on grounds substantially, that this ordinance was in conflict with the statute of the state, defining the offense of disturbing an assemblage met for religious worship, in this, that the act of disturbance, under the ordinance, need not be willful or intentional, to constitute a violation thereof; that it was not averred, that the defendant did willfully interrupt or disturb the congregation, and that the ordinance was unreasonable, in that any act however innocently or unintentionally done, which interrupts or disturbs such a congregation, is a violation of the ordinance. The court sustained the demurrer, and the city appeals.

The charter of the city bestows on the mayor and aldermen the power to preserve the peace and good order of the city (section 5); and to make and adopt by-laws and ordinances upon whatever subject, not inconsistent with the laws of the state, for the good government and order of the city, and such as shall be needful for the government, police interest, welfare and good order of the city (section 18). Acts 1900-1901, p. 1557.

It was competent for the general assembly to delegate such power to the municipality, which, when enacted into an ordinance, had the force, as to persons bound thereby, of a statute passed by the legislature itself. Moses v. Mayor, etc., 52 Ala. 207. The power to enact such ordinances was bestowed not to punish for an offense against the public justice of the state, but to provide a police regulation for the enforcement of good order and quiet within the limits of the corporation. It was altogether immaterial, in bestowing this power on the city, whether the state had created this offense against its...

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11 cases
  • Salt Lake City v. Doran
    • United States
    • Utah Supreme Court
    • March 31, 1913
    ... ... A. (Mich.) ... 763; Brownville v. Cook, 4 Neb. 1; Rossberg v ... State, 111 Md. 394; Elsner Bros. v. Hawkins, 73 ... S. E. (Va.) 479; Talladega v. Fitzpatrick, 32 So ... 252 (Ala.) ; Linneus v. Dusky, 19 Mo.App. 20; ... Seattle v. Chin Let, 52 P. 324 (Wash.) ; State ... v. Flint, 63 Conn ... ...
  • Ex parte Rowe
    • United States
    • Alabama Court of Appeals
    • May 7, 1912
    ... ... James ... W. Strother, of Alexander City, and N. D. Denson, of La ... Fayette, for appellee ... [4 ... Ala.App. 256] DE ... Holt v. Mayor and Aldermen, 111 Ala. 369, 19 So ... 735; Mayor and Aldermen of Talladega v. Fitzpatrick, ... 133 Ala. 613, 32 So. 252 ... We are ... not unmindful of the fact ... ...
  • Engstrom v. Robinson
    • United States
    • U.S. District Court — Southern District of Alabama
    • July 22, 1970
    ...element of scienter." In view of the Alabama Supreme Court's willingness to imply scienter as an element in City of Talladega v. Fitzpatrick, 133 Ala. 613, 32 So. 252 (1902), the court feels obliged to view the ordinance as if it did require mens rea. Section 3 From the record before this c......
  • Bell v. State
    • United States
    • Alabama Court of Appeals
    • April 3, 1917
    ... ... Rehearing ... Denied May 15, 1917 ... Appeal ... from City Court of Bessemer; J.C.B. Gwin, Judge ... Joe ... Bell was convicted of violating the ... Allaire, 14 Ala. 400; Harris ... v. State, 128 Ala. 41, 29 So. 581; Mayor v ... Fitzpatrick, 133 Ala. 616, 32 So. 252; Moses v ... Mayor, 52 Ala. 207. However, the adoption of section ... ...
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