Downey v. City of Bay Minette, 1 Div. 763
| Decision Date | 21 October 1958 |
| Docket Number | 1 Div. 763 |
| Citation | 106 So.2d 32,39 Ala.App. 619 |
| Parties | T. C. DOWNEY v. CITY OF BAY MINETTE. |
| Court | Alabama Court of Appeals |
Thompson & White, Bay Minette, for appellant.
J. B. Blackburn, Bay Minette, for appellee.
In the Circuit Court this appellant was convicted upon a complaint of the City of Bay Minette charging that he 'did possess, or have in his possession liquor in an automobile licensed by the State of Alabama for use as a taxicab and used for the transportation of passengers for hire within the corporate limits of the City of Bay Minette, Alabama, a municipal corporation, in violation of Ordinance No. 552 enacted by the City of Bay Minette, Alabama, on January 3, 1957.'
No demurrers were filed to the complaint.
However the defendant filed five special pleas, all questioning the constitutionality and validity of Ordinance 552.
Pleas 1 and 2 assert, in substance, in varying ways, that the ordinance is void and illegal in that it renders unlawful that which is lawful by the laws of the State of Alabama.
The city's demurrer to the special pleas was sustained.
Whenever the question is distinctly presented, and is necessary to the decision of a particular case, a court will not hesitate to determine the constitutionality of legislative or municipal enactments. Hill v. Tarver, 130 Ala. 592, 30 So. 499. We consider the question of the constitutionality presented by the special pleas.
The defendant's jury trial resulted in a verdict and judgment of guilty. His motion for a new trial was overruled, and hence this appeal.
The Sections of Ordinance 552, pertinent to this review, and upon which this appellant was convicted read as follows:
'Section 3: It shall be unlawful for any person to possess or have in his possession any liquor, malt or brewed beverages or wine in the corporate limits or police jurisdiction of the City of Bay Minette, Alabama, in any automobile licensed by the State of Alabama for use as a taxi cab and used for the transportation of passengers for hire.
'Section 4: It shall be unlawful for any person who owns or operates an automobile or automobiles for hire to possess or have in his possession any liquor, malt or brewed beverages or wine in the corporate limits or police jurisdiction of the City of Bay Minette, Alabama, in any building or on the premises where such automobile or automobiles are kept or where such person does business.'
It is apparent that as framed the complaint attempts to charge an offense under the provisions of Section 3, supra, and we will confine our review to the validity of this Section, though our observations are equally applicable to Section 2, supra. We pretermit entirely consideration of the validity of Section 4, supra, since the complaint charges no offense under this section.
Section 3, supra, is palpably invalid on several grounds. We will not attempt to discuss all its defects.
As stated by the late Judge Rice in Ligon v. City of Gadsden, 21 Ala.App. 312, 107 So. 733, 734:
We judicially know that Baldwin County is a 'wet' county. Any adult may legally possess liquor purchased at a State liquor store. He may walk the streets of Bay Minette with a bottle of whiskey so purchased in his hand, he may transport the same in a motor vehicle, his own, a friend's, or in a taxicab, and his actions are entirely legal under the laws of the State of Alabama.
He may do all of these things under Ordinance 552, supra, unless and until he enters a taxicab. Then, the ordinance would make his conduct criminal.
The ordinance was apparently designed to aid in the enforcement of illegal traffic in alcoholic liquor, and would seek this end by restricting the conduct of owners and operators of taxicabs. Yet, in its broad terms it sweeps in not only taxi operators, but any and all persons.
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