Miller v. City of Birmingham

• Decision Date: 13 June 1907
• Citation: 151 Ala. 469,44 So. 388
• Parties: MILLER v. MAYOR, ETC., OF CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

44 So. 388

151 Ala. 469

MILLER v. MAYOR, ETC., OF CITY OF BIRMINGHAM.

Supreme Court of Alabama

June 13, 1907

Appeal from Criminal Court, Jefferson County; D. A. Greene, Judge.

George Miller was convicted of peddling without a license in violation of a city ordinance, and appeals. Affirmed.

William Vaughan and J. W. Davidson, for appellant.

E. B Smith and J. Q. Smith, for appellees.

HARALSON J.

The appeal in this case is prosecuted from a judgment of conviction against the defendant for the violation of an ordinance of the city of Birmingham, requiring a license for milk or butter peddlers. The appellant was convicted in the police court, and appealed to the criminal court of Jefferson county, where he demanded a trial by jury, which demand was denied.

The law is well settled in this state that the constitutional guaranty of a trial by jury does not apply to the violation of a municipal ordinance, at least, where such ordinance is not of itself also a violation of the criminal laws of the state. Bray v. State, 140 Ala. 172, 183, 37 So. 250 and authorities cited.

It is contended that the ordinance requiring a license of $15 for each wagon peddling milk or butter is unreasonable discriminative and void.

Whenever a question arises as to the reasonableness vel non of a municipal ordinance, which relates to a subject within the corporate jurisdiction, it will always be presumed to be reasonable unless the contrary appears on the face of the law itself, or is established by proper evidence. Van Hook v City of Selma, 70 Ala. 361, 45 Am. Rep. 85.

Whether this license be regarded as a mere police regulation, or the exercise of the taxing power for the purpose of revenue, certainly it does not appear upon the face of the ordinance itself, that it is at all unreasonable.

We cannot affirm as a matter of law, if it be considered as a police regulation, that the sum of $15 is an exorbitant amount, in a city of the size of Birmingham, for the proper exercise of the police power in the regulation of this necessary article of food which is supplied to its inhabitants. Nor can we affirm, if it be regarded as a source of revenue, that this amount is unreasonable and the evidence in this case does not furnish us any proof tending to establish such a result.

We are inclined to think that the purpose of this license was to obtain revenue rather than to regulate the sale of milk and butter by peddlers.

The appellant introduced in evidence certain other...