Little v. City of Attalla

• Decision Date: 16 April 1912
• Citation: 4 Ala.App. 287,58 So. 949
• Parties: LITTLE v. CITY OF ATTALLA.
• Court: Alabama Court of Appeals

58 So. 949

4 Ala.App. 287

LITTLE v. CITY OF ATTALLA.

Court of Appeals of Alabama

April 16, 1912

Appeal from City Court of Gadsden; James A. Bilbro, Judge.

W. B Little was convicted of violating an ordinance of the City of Attalla prohibiting gambling, and he appeals. Affirmed.

Boykin & Bailey, of Gadsden, for appellant.

Alto V Lee, of Gadsden, for appellee.

PELHAM J.

The appellant was prosecuted in the mayor's court of the city of Attalla for gambling in violation of an ordinance of the city, was convicted, and appealed to the city court of Gadsden, where the case was tried de novo and an appeal prosecuted to this court. The city filed a complaint in the proceedings had in the city court of Gadsden against the defendant, setting out the ordinance in hæc verba, and averring a violation thereof by the defendant charging him with betting money or other thing of value upon a game played with cards, etc. The ordinance in question is as follows: "Be it ordained by the mayor and board of aldermen of the city of Attalla, that any person or persons gaming or gambling shall be guilty of a misdemeanor and on conviction shall be fined not less than five nor more than fifty dollars."

The appellant questions the validity of this ordinance contending that it is void because inconsistent with and in excess of the general laws of the state, and therefore violative of section 89 of the Constitution of Alabama, prohibiting the Legislature from authorizing a municipality to pass laws inconsistent with the general laws of the state. The appellant insists that as the state laws against gaming and gambling are confined to certain games and forms of gambling under specified conditions or circumstances, the city ordinance making it an offense to engage in gaming or gambling, without defining the games and limiting the gambling to conform to the state statutes on the same subject, exceeds the delegated authority conferred on the municipality, and that the ordinance is void because of inconsistency with the state laws on the same subject. In other words, it seems to be the principal contention of the appellant that the ordinance is void because it prohibits by its terms all gaming and gambling, while under the state laws there is no prohibition against certain gaming, or engaging in certain games, and that gambling is not prohibited except as applied to designated games or places.

Even if it be true that the corporate powers were without authority to prohibit playing such games or acts of gambling not made an offense under the general state laws, and that the ordinance, while valid in part, would be invalid as referable to such matters not made an offense by state laws, still, the defendant having been charged in the complaint and shown by the evidence to be guilty of an offense punishable under the state laws (Code of 1907, §§ 6983, 6987), he is not brought within the invalid part of the ordinance or shown to be affected by the provisions that the municipality had no power to regulate by ordinance and punish, conceding that the ordinance embraced such provisions.

"And the law is well settled, not only that an ordinance may be good and bad in parts, when the good provisions are separable from the bad, as in the case of statutes (Lowndes County v. Hunter, 49 Ala. 509; Powell v. State, 69 Ala. 10; Ballentyne v. Wickersham, 75 Ala. 537; Horr & Bemis Mun. Ord. § 139; Wilcox v. Hemming, 58 Wis. 144, 15 N.W. 435, 46 Am. Rep. 625; Shelton v. Mobile, 30 Ala. 540, 68 Am. Dec. 143), but 'that the fact that an ordinance covers matters which the city has no power to control, is no reason why it should not be enforced as to those which it may control.' " Ex parte Cowert, 92 Ala. 94, 97, 9 So. 225. See, also, Ex parte Bizzell, 112 Ala. 210, 21 So. 371.

If an ordinance is valid in part and invalid in part, he who assails its validity must show himself to be affected by the provision alleged...