Ex parte Davis
| Decision Date | 07 June 1917 |
| Docket Number | 3 Div. 294 |
| Citation | 76 So. 368,200 Ala. 436 |
| Parties | Ex parte DAVIS. |
| Court | Alabama Supreme Court |
Certiorari to Court of Appeals.
Arthur Davis was convicted in the recorder's court of a violation of the prohibition laws, and he appealed to the city court of Montgomery, which ordered his discharge, and from that judgment the city appealed to the Court of Appeals where the cause was reversed and remanded (74 So. 730) whereupon defendant petitioned for certiorari to review and revise the judgment of the Court of Appeals. Certiorari denied.
L.A Sanderson, of Montgomery, for appellant.
W.E. Andrews, of Montgomery, for appellee.
Petitioner, Arthur Davis, was convicted in the recorder's court of the city of Montgomery of the violation of an ordinance of the city of Montgomery relating to prohibition. From the judgment of conviction he appealed to the city court of Montgomery, where, on a trial de novo, he was discharged; the city court holding that the ordinance in question was void and would not support a conviction. The city thereupon appealed to the Court of Appeals, which court reversed the judgment of the city court.
Defendant petitioner makes this application for the writ of certiorari to the Court of Appeals, issuable out of the Supreme Court, to the end that this court may review the decision and reverse the judgment of the Court of Appeals. The sole question of law thus presented to us is the validity vel non of the ordinance under which defendant was charged and convicted. The ordinance in question reads as follows:
The objections urged against the validity of the ordinance are (1) that a municipality cannot, without express legislative authority, thus adopt the criminal laws or statutes of the state, even as to one given subject; and (2) that no such authority has been so conferred.
There is no doubt that municipal corporations in this state have the power to regulate, control, or even to prohibit, the manufacture, sale, and disposition of intoxicating liquors, and to pass appropriate and reasonable ordinances to prevent evasions, and aid in the enforcement of the prohibition laws, within their respective territories, provided such ordinances are not inconsistent with the state statutes or laws. If there was ever a doubt on this subject, it was settled by the general statute of August 25, 1909, providing in part as follows:
"That the governing body of towns and cities of the state shall have and may exercise full power and authority to adopt ordinances not inconsistent with the laws of the state to promote temperance and to suppress intemperance, and to suppress the traffic in such beverages as the law of the state prohibits to be manufactured, sold or otherwise disposed of, and to prevent evasion of such ordinances, etc. *** That the enactment of this statute shall not be taken as a legislative declaration that such cities and towns do not now have such powers under the municipal laws of the state, nor shall this act be construed as limiting or diminishing the police powers of the towns and cities of the state under existing laws, the purpose of the statute being to confer the said powers in express terms, and to remove any question as to their existence." Gen.Acts 1909, pp. 174, 175.
The cities having thus been given the express power, the next, and the only remaining, question is: Was the ordinance in question properly enacted? It is insisted by defendant, the petitioner here, that it was not so passed or ordained, in that the city, or its governing board or officers, cannot enact an ordinance by merely adopting some state laws or statutes en bloc or en masse, as was done or attempted to be done in this instance. The ordinance in question provides, in short, that any person within its territory who violates any of the prohibition laws of the state, where such violation constitutes a misdemeanor under the prohibition laws of the state, shall also be guilty of a violation of the ordinance, and, on conviction, shall be punished by a fine not to exceed $100, and, in addition, may be imprisoned or sentenced to hard labor for a period not to exceed six months.
An ordinance of the city of Birmingham, adopted after the passage of that here in question, was construed, and held void, in the case of Kreulhaus v. Birmingham, 164 Ala. 623, 51 So. 297, 26 L.R.A. (N.S.) 492, on the ground that the offenses declared were not by the ordinance itself made "clear, certain, and definite," and therefore that the ordinance had not been duly promulgated. That ordinances of that kind can alone be looked to, in determining the question whether they are sufficiently clear certain, and definite, several supporting decisions are in that case cited, and reviewed, to establish. The trial court in this case no doubt followed the decision in the Kreulhaus Case, when it held the ordinance in...
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Tulley v. City of Jacksonville (Ex parte Tulley)
...“expense in enacting and promulgating a volume of penal ordinances in the same terms as well-known public statutes”).In Ex parte Davis, 200 Ala. 436, 76 So. 368 (1917), the Court addressed a municipal ordinance that adopted state misdemeanors as offenses against the municipality. The Court ......
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...out of keeping with its terms and manifest purpose. Sloss-Sheffield S. & I. Co. v. Smith, 175 Ala. 260, 57 So. 29; Ex parte Davis, 200 Ala. 436, 76 So. 368; State ex rel. Miller v. Leich, 166 Ind. 680, 78 189, 9 Ann.Cas. 302, note 304; Ramish v. Hartwell, 126 Cal. 443, 58 P. 920; Gaston v. ......
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