Ligon v. City of Gadsden

• Decision Date: 23 March 1926
• Docket Number: 7 Div. 161
• Citation: 21 Ala.App. 312,107 So. 733
• Parties: LIGON v. CITY OF GADSDEN.
• Court: Alabama Court of Appeals

107 So. 733

21 Ala.App. 312

LIGON v. CITY OF GADSDEN.

7 Div. 161

Court of Appeals of Alabama

March 23, 1926

Appeal from Circuit Court, Etowah County; O.A. Steele, Judge.

Prosecution by the City of Gadsden against T.O. Ligon for violating an ordinance against gaming. From a judgment of conviction defendant appeals. Reversed and remanded.

W.J Boykin, of Gadsden, for appellant.

Joe F Duke, of Gadsden, for appellee.

RICE J.

The sole question in controversy on this appeal is the validity vel non, of an ordinance, regularly enacted, of the city of Gadsden in the following language:

"Any person who plays in any game of chance or hazard for money or other valuable things, or who in any way aids or abets, countenances or encourages such game, must, on conviction, be fined not less than one and not more than one hundred dollars."

The decisions governing are in conflict, and more or less difficult to reconcile.

The ordinance here involved is manifestly inconsistent with the general laws of the state, and it was not the purpose of the Constitution, we think, to authorize the Legislature to confer upon municipalities authority to pass such ordinances. Const. 1901, art. 4, § 89; City of Bessemer v. Eidge, 50 So. 270, 162 Ala. 201; Town of Livingston v. Scruggs, 93 So. 224, 18 Ala.App. 527.

As, however, was said by the Supreme Court in the opinion in the case of Ward et al. v. Markstein, 72 So. 41, 44, 196 Ala. 209, 216:

"The question here presented is not one of the power of the Legislature to validly authorize municipalities to enact ordinances of this character [i.e. of the character of the one hereinabove set out], but is whether the ordinance under review is inconsistent with the policy of the state established by the Legislature of 1915. Is this ordinance inconsistent with the general laws, the general policy of the state *** (governing gaming, etc.)? If so, then the ordinance is void. 2 Dillon on Mun. Corp. (5th Ed.) § 601; Dunn v. Wilcox Co., 4 So. 661, 85 Ala. 144, 147; Greensboro v. Ehrenreich, 2 So. 725, 80 Ala. 579, 60 Am.Rep. 130. The rule is thus stated in the Dunn Case, supra: 'It is, accordingly, a familiar rule on this subject that municipal by-laws and ordinances, in conflict with the general law, will be adjudged void, unless they be clearly authorized by the charter of the particular town or city enacting them.' At the citation in Dillon it is said: 'The rule that a municipal corporation can pass no ordinance which conflicts with its charter, or any general statute, in force and applicable to the corporation, has been before stated. Not only so, but it cannot, in virtue of its incidental power to pass by-laws, or under any general grant of that authority, adopt by-laws which infringe the spirit or are repugnant to the policy of the State as declared in its general legislation.' "

In Eidge's Case, supra, the Supreme Court said:

"The purpose of the Constitution was to prohibit the Legislature from conferring authority upon municipalities inconsistent with the general laws of the state. *** The power of municipal corporations to make by-laws is limited by the federal and state Constitutions, and the by-laws must be in harmony with the general laws of the state and with the charters of the respective corporations. If the

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