Kreulhaus v. City of Birmingham

• Citation: 51 So. 297,164 Ala. 623
• Parties: KREULHAUS v. CITY OF BIRMINGHAM.
• Decision Date: 21 December 1909
• Court: Supreme Court of Alabama

51 So. 297

164 Ala. 623

KREULHAUS v. CITY OF BIRMINGHAM.

Supreme Court of Alabama

December 21, 1909

Appeal from Criminal Court, Jefferson County; S. L. Weaver, Judge.

Fred Kreulhaus was convicted of a misdemeanor under an ordinance of the city of Birmingham, and appeals. Reversed, and defendant discharged.

Allen &amp Bell, for appellant.

J. Q Smith and H. A. Lock, for appellee.

SAYRE J.

This appeal raises a great number and variety of questions, but we think the consideration of one will suffice to dispose of the case. Appellant had done an act--we will assume for the purposes of the argument--denounced by the legislative enactment of March 12, 1907, entitled "An act to define and punish aiding, abetting or counselling or procuring an unlawful sale, purchase, gift or other unlawful disposition of spirituous, vinous or malt liquors, or liquors prohibited by law from being sold, given away or otherwise disposed of." Acts 1907, p. 366. He was prosecuted for the violation of an ordinance of the city of Birmingham which is as follows: "Sec. 805 (as amended). All offenses that are misdemeanors under the laws of the state of Alabama, as defined by statutes or by the common law in force in the state of Alabama, are hereby declared to be offenses and misdemeanors under the laws and ordinances of the mayor and aldermen of the city of Birmingham, except the violation of the state revenue laws, and punishable upon conviction in the police court of Birmingham as provided in section 806 of this Code." The record affords no information as to the date of the adoption of the quoted ordinance.

Municipal quasi criminal ordinances, as well as ordinances of a different character, must be clear, certain, and definite and duly promulgated. In determining what are offenses against a municipality, regard can be had to the ordinances of the municipality only. We do not deny the power to adopt a definite code of laws in a body, but in such cases the code of laws adopted must be adopted as a whole, or some definite rule provided for discriminating between those parts included and those excluded. Power is not conferred upon municipal corporations to punish offenses against the criminal justice of the country, nor to provide penalties for the enforcement of public duties and the protection of private rights, which have no relation to the purposes for which municipalities are chartered. There are scores of offenses denounced by the laws of the state as misdemeanors which touch upon no municipal function whatever. There are others which lie more vaguely upon the border line--for example, that section of the Code which makes it a misdemeanor for ineligible persons to assume office. The ordinance in question, with an exception which seems to recognize the necessity for discrimination, so far as its terms indicate, intended to punish as an offense against the city every act constituting a misdemeanor under the laws of the state. This it clearly could not do, and failing of municipal competency in part, it must fail in toto. It is not the business of the courts to amend municipal ordinances, on their own idea of what they were intended to accomplish, so as to make them conform with the powers conferred by municipal charters.

We have found only two instances in which ordinances adopting a code of foreign laws en bloc have been considered. In Chrisman v. City of Jackson, 84 Miss. 787, 37 So. 1015, an ordinance of the sort was sustained. But legislative enactment had prescribed that "all offenses against the criminal laws of this state, occurring within the limits of said corporation, not amounting to a felony, shall be deemed violations of the ordinances of the city of Jackson and punishable as such." There is no occasion to question the legislative power there exercised. In the later case of Town of Oakland v. Miller, 90 Miss. 275, 43 So. 467, the Supreme Court of Mississippi considered an ordinance in these words: "Be it ordained by the mayor and board of aldermen of the town of Oakland, state of Mississippi, that all acts punishable under the laws of the state of Mississippi, when committed within the municipality of the village of Oakland, are hereby declared to be offenses against said town and punishable," etc. The ordinance was said to be manifestly void, for the reason that it included felonies as well as misdemeanors; the statute having limited the jurisdiction of municipalities to the punishment of misdemeanors. The line of discrimination which might have been applied to that case to save the ordinance was entirely plain--the line between felonies and misdemeanors. But the court refused to draw it. The judgment was that the line must be drawn in the ordinance itself. The case in hand involves an identical principle. The ordinance under consideration is even more clearly bad, for the reason that the line to be drawn is itself doubtful and not well defined. That it goes beyond the power of the municipality seems clear.

It is supposed that the case of Kettering v. Jacksonville, 50 Ill. 39, decided by the Supreme Court of Illinois in 1869 holds to the contrary of what has been said. The following language of the decision in that case furnishes all the information we have of the question there presented and decided: "It is said that the ordinance in question prohibits not only the sale of liquor by retail, but by wholesale, and therefore cannot be sustained as a police regulation. But this prosecution was for the sale of beer by the glass, in what is called a 'saloon,' and therefore does not involve the question of the power of the city to forbid its sale as an article of commerce, to be carried beyond the limits of the city, or used for mechanical or domestic purposes. Such a case is not before us. The facts which are presented by the record not only show a violation of the terms of the ordinance, but a violation of such a character as to be clearly within the constitutional reach of the city prohibition. The ordinance may be too comprehensive in its provisions, and...