Costello v. Feagin

• Decision Date: 24 May 1909
• Citation: 162 Ala. 191,50 So. 134
• Parties: COSTELLO v. FEAGIN, JUDGE.
• Court: Alabama Supreme Court

50 So. 134

162 Ala. 191

COSTELLO v. FEAGIN, JUDGE.

Supreme Court of Alabama

May 24, 1909

Rehearing Denied June 30, 1909.

Appeal from Criminal Court, Jefferson County; William E. Fort Judge.

Petition by Morris Costello for a writ of prohibition to be directed to N. B. Feagin, as Judge of the Inferior Court of Birmingham. Judgment denying the writ, and petitioner appeals. Affirmed.

A Latady, for appellant.

J. Q Smith, for appellee.

SAYRE J.

This is an appeal from the judgment of the criminal court of Jefferson county denying a writ of prohibition. Petitioner had been arrested on a warrant which was based upon an affidavit charging that petitioner "did give away or otherwise dispose of spirituous, vinous, or malt liquor in violation of the state prohibition law and Ordinance 181 amending section 805 of the City Code of Birmingham, against the laws and ordinances of the city of Birmingham." The affidavit had been taken and the warrant issued by the clerk of the inferior criminal court of Birmingham. Upon his arrest petitioner demanded a trial by jury, and in order to avoid incarceration ad interim gave bail for his appearance on a future day in the inferior criminal court. In that court the petitioner moved that the warrant of arrest be quashed, and for his discharge, on the ground that the case presented was a charge under the laws of the state of Alabama, and that the court there had no jurisdiction to try the same; his theory being, as we understand his statement of it, that it was not within the competency of the city of Birmingham to convert an offense against the law of the state of Alabama into an offense against an ordinance of the city of Birmingham, with effect to deprive him of the right to trial by jury. The petition averred that the judge of the inferior court, having overruled his motion, proposed to proceed with the trial of petitioner under the affidavit as for a violation of the ordinance of the city. Wherefore petitioner prayed for a writ of prohibition to restrain the judge of the inferior court from proceeding farther to try petitioner as for an offense against the ordinance of the city of Birmingham.

Appellant concedes that section 11 of the Constitution (of 1901) gives no aid to his contention, for the reason that the guaranty of the right of trial by jury, given by that section, extends only to those cases in which the right existed at the time of the adoption of the provision. The petition quotes section 8 of the Constitution, which provides "that no person shall, for any indictable offense, be proceeded against criminally, by information," with exceptions not affecting his case, and the proviso to the same section in language as follows: "Provided, that in cases of misdemeanor, the Legislature may by law dispense with a grand jury and authorize such prosecutions and proceedings before justices of the peace or such other inferior courts as may be by law established"--and complains that, whatever power the Legislature may have to dispense with indictments in cases of indictable offenses, no municipal corporation has such power. The judge of the inferior court was proceeding in conformity with section 4 of the act establishing that court. Acts 1894-95, p. 527 et seq. The validity of that act as a compliance with the proviso of section 8 of the Constitution (of 1901) is not questioned. The true meaning, then, of appellant's contention, is that the municipality was without power to pass the ordinance under which he was being prosecuted, and this lack of power is predicated upon the...