Mitchell v. City of Birmingham

• Decision Date: 05 March 1931
• Docket Number: 6 Div. 832.
• Parties: MITCHELL v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

133 So. 13

222 Ala. 389

MITCHELL v. CITY OF BIRMINGHAM.

6 Div. 832.

Supreme Court of Alabama

March 5, 1931

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Lillie Mitchell was convicted of violating an ordinance of the City of Birmingham, and she appeals.

Transferred from the Court of Appeals.

Affirmed.

Tom J Roe, of Birmingham, for appellant.

W. J Wynn and Ralph E. Parker, both of Birmingham, for appellee.

BOULDIN J.

The sole question presented is: Must section 904 of the Municipal Code of the city of Birmingham, prohibiting the business or practice of fortune-telling or palmistry for reward, be declared invalid because in violation of section 89 of the Constitution of Alabama?

This section reads: "The legislature shall not have power to authorize any municipal corporation to pass any laws inconsistent with the general laws of the state."

The general revenue law of the state prescribes a license: "For each fortune teller, palmist, clairvoyant, fifty dollars." Revenue Code of 1929, p. 259, Schedule 73.

Is the ordinance in question "inconsistent" with this general law within the meaning of section 89 of the Constitution?

The general law, applicable to cities of more than 100,000 inhabitants, declares such cities "shall have full, complete, unlimited and continuous power and authority, from time to time, to adopt ordinances and regulations not inconsistent with the laws of the State and the Federal and State Constitutions to carry into effect or discharge the powers and duties conferred by law upon such cities, and to provide for the safety, preserve the health, promote the prosperity, improve the morals, orders, comfort, and convenience of the inhabitants of the city, and to prevent and punish injuries and offenses to the public therein *** and to the ends set out in this section the full, complete and unlimited police powers possessed by the State of Alabama are hereby delegated to such cities and towns as though specifically and in detail set out in this section, in so far as it is possible for the Legislature of Alabama under the Constitution of Alabama and of the United States to delegate such powers." Gen. Acts 1915, p. 296, § 6.

While it may be common knowledge that many persons consult fortune-tellers as mere matter of amusement or pastime, the business is not recognized as one to be exercised as of right, subject to regulation merely. It was condemned as far back as the Mosaic law. Deut. Ch. 18, verses 10-12.

So associated with cheats, frauds, imposition upon the credulous and superstition is such profession, that its absolute prohibition is generally declared to be within the police power of the state, and municipalities to which such power is delegated.

The plenary police powers of the city of Birmingham carry full power to prohibit, unless under the ban of section 89 of the Constitution. People v. Ashley, 184 A.D. 520, 172 N.Y.S. 282; State v. Kenilworth, 69 N. J. Law, 114, 54 A. 244, affirmed in 69 N. J. Law, 674, 56 A. 1133; Fay v. Lambourne, 124 A.D. 245, 108 N.Y.S. 874, affirmed in 196 N.Y. 575, 90 N.E. 1158; State v. Neitzel, 69 Wash. 567, 125 P. 939, 43 L. R. A. (N. S.) 203, Ann. Cas. 1914A, 899; People v. Elmer, 109 Mich. 493, 67 N.W. 550; McMasters v. State, 21 Okl. Cr. 318, 207 P. 566, 29 A. L. R. 292; State v. Durham, 5 Pennewill (Del.) 105, 58 A. 1024; 18 C.J. 1221; 25 C.J. 596; 39 Cyc. 1110.

This constitutional provision appeared as article 4, § 50, of the Constitution of 1875. In Ex parte Cowert, 92 Ala. 94, 9 So. 225, 227, certain provisions of a town charter were challenged under this section as well as others. They were held bad because not within the title to the act. The court added: "This conclusion renders it unnecessary to decide whether the general assembly may authorize a municipal corporation, in which the general law of the state as to licensing the sale of liquors is in force, to prohibit that traffic, the general state law to the contrary notwithstanding. We are, however, of the opinion, based on exhaustive investigation and consideration, that such authorization would not be violative of article 4, § 50, of the constitution. We do not think the purpose or effect of that provision is in any manner to limit the legislature in conferring police powers on municipal corporations."

The court here evidently deemed it proper to express an advisory opinion based on exhaustive investigation and consideration for future guidance, although the decision was unnecessary to the case in hand.

Cooke, City Clerk, v. Loper, 151 Ala. 546, 44 So. 78, 79, involved the validity of an ordinance creating a license board with broad discretion as to granting licenses to sell liquors, virtually the power to refuse license entirely, provisions far more restrictive than the state law. Touching the charter power, the court said: "It must be conceded that by the charter the Legislature conferred on the city the power to enact ordinances regulating the subject of intoxicating liquors, the granting of license to deal in them, etc., to the same extent as the Legislature could have done by a direct and comprehensive statute. And we think a reasonable doubt cannot arise as to the authority of the Legislature to vest in the governing board of the city a certain discretion in this respect, and that such legislation would not be violative of section 89 of article 4 of the constitution. Ex parte Cowert, 92 Ala. 94, 101, 9 So. 225; Black, Intoxicating Liquors, § 217; 1 Dill. Mun. Corp. (4th Ed.) § 308."

In dealing with the discretion which the Legislature may confer on city authorities, the above case draws a distinction between businesses which may be engaged in as of right, and those with harmful incidents, licensed both for purposes of revenue and regulation.

Ward v. Markstein, 196 Ala. 209, 72 So. 41, 44, may be regarded the leading case in Alabama construing section 89 of the Constitution. Said the court: "Section 89 of the Constitution is but a restraint upon the power of the Legislature 'to authorize any municipal corporation to pass any laws inconsistent with the general laws of this state,' and does not limit the power of the Legislature 'in conferring police powers on municipal corporations.' Ex parte Cowert, 92 Ala. 94, 101, 9 So. 225; Holt v. Birmingham, 111 Ala. 369, 372, 19 So. 735."

The decision further criticized an expression in Ex parte Rowe, 4 Ala. App. 254, 59 So. 69, saying: "'The inhibition against municipal corporations passing laws inconsistent with the general laws of the state means that such municipal corporations shall not pass laws rendering that lawful which the state law renders unlawful."'

The true rule is thus stated: "Where the state has expressed through legislation a public policy with reference to a subject, a municipality cannot ordain in respect of that subject to an effect contradictory or in qualification of the public...