Miller v. City of Birmingham, 6 Div. 377
Decision Date | 07 January 1969 |
Docket Number | 6 Div. 377 |
Citation | 218 So.2d 281,44 Ala.App. 628 |
Parties | James William MILLER v. CITY OF BIRMINGHAM. |
Court | Alabama Court of Appeals |
Wm. Conway, Birmingham, for appellant.
Wm. C. Walker, Birmingham, for appellee.
Miller was accused of indecent exposure contrary to a Birmingham ordinance. He appealed from a conviction in the Recorder's Court. In the Circuit Court he was tried de novo with a jury.
He was found guilty, fined $100 and assessed additional punishment of ninety days imprisonment in the city jail.
The first assignment of error complains of the circuit court's overruling Miller's motion to quash the City Attorney's complaint for the trial de novo.
Complaint is made that Miller was arrested on a warrant sworn to by Donna Jean Lawson before James R. Davis described as 'Magistrate of Recorder's Court.'
Davis is averred to be a member of the police force of the city. His authority derives from an ordinance (64--48) based on Act No. 100, August 24, 1964.
The title of Act No. 100, Appendix 14A, § 1601 (129--145), Michie's 1958 Code, reads:
'To apply in and only in each city in this state having a population of 300,000 or more, according the last or any subsequent decennial federal census; to provide for the creation of the office of City Magistrate and the appointment of City Magistrates; to define the qualifications, powers and duties of City Magistrates; and to provide for search warrants and warrants of arrest.'
The qualifications of the office of city magistrate laid down in said Act are:
' .
In its brief the City argues as follows:
In the Chaney case there were two questions certified to the Supreme Court. The second was:
'* * * Second, whether in order to invoke the jurisdiction of the next higher court on appeal from a recorder's court in a prosecution for violation of a municipal ordinance, the transcript must affirmatively disclose the affidavit upon which the accused was first tried in the subordinate tribunal.'
The response on this point reads:
It may be that to appoint a police officer as a City Magistrate may in the case of warrants either for arrests or searches breach constitutional bounds. State v. Furmage, 250 N.C. 616, 109 S.E.2d 563; State v. Paulick, 277 Minn. 140, 151 N.W.2d 591 and State v. Ruotolo, 52 N.J. 508, 247 A.2d 1.
However, the question is not before us because (1) the record fails to show that any objection was made in the Recorder's Court; (2) under Code 1940, T. 13, § 98, this court cannot pass adversely on the constitutionality of Act No. 100; and (3) nothing shows us that Davis was a city police officer.
Assignment of error 2 is argued to the effect that grounds 5 and 6 of appellant's demurrer to the City's complaint in the circuit court were apt.
The City attorney's complaint de novo filed in the circuit court reads in pertinent part as follows:
'Comes the City of Birmingham, Alabama, a municipal corporation, and complains that James William Miller, defendant, within twelve months before the beginning of this prosecution on, to-wit: December 31, 1966, and within the City of...
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