Plump v. City of Birmingham
| Decision Date | 22 April 1980 |
| Docket Number | 6 Div. 100 |
| Citation | 385 So.2d 1349 |
| Parties | Adolphus PLUMP, III, v. CITY OF BIRMINGHAM. |
| Court | Alabama Court of Criminal Appeals |
Tom L. Larkin of Shores & Larkin, Birmingham, for appellant.
Rowena M. Crocker, Birmingham, for appellee.
This is an appeal from a conviction of public drunkenness and a fine of $45.01. Defendant had appealed from a judgment of the Municipal Court of the City of Birmingham on the same charge. In the Circuit Court he was tried on a complaint as follows:
"Comes the City of Birmingham, Alabama, a municipal corporation, and complains that Adolphus Plump, within twelve months before the beginning of this prosecution, on to-wit: December 23, 1978, and within said City of Birmingham, at or near the 1900 Block of 1st Alley, South, did, while intoxicated or drunk, appear in a public place where one or more persons were present and manifest a drunken condition by boisterous, noisy, and disorderly conduct or by staggering, contrary to and in violation of Section 36-15 of the General City Code of Birmingham, Alabama, of 1964, as amended."
The appeal from the Circuit Court is on the record proper only. Some references are made in briefs to the evidence, but we have before us no transcript of the testimony, and we cannot properly consider what the testimony was or might have been.
The only definite proposition advanced on this appeal is as to the validity of Section 36-15 of the General City Code of Birmingham, Alabama, of 1964, as amended, appellant contending as he did on the trial by demurrer to the complaint, that the ordinance is unconstitutional in that it is "inconsistent with the State Statute" and with "the policy of the State as declared in its general legislation." The demurrer was overruled by the trial court.
The ordinance under consideration provides as follows:
"No person shall, while intoxicated or drunk, appear in any public place or within the curtilage of any private residence, not his own, where one or more persons are present, and manifest a drunken condition by boisterous, noisy, disorderly or indecent conduct, or by rude and profane language, or by staggering, falling, or sleeping."
Appellant draws a contrast between the ordinance and Code of Alabama 1975, § 13-6-14 which provides:
"Any person who, while intoxicated or drunk, appears in any public place where one or more persons are present, or at or within the curtilage of any private residence, not his own, where one or more persons are present, and manifests a drunken condition by boisterous or indecent conduct or loud and profane discourse shall, on conviction, be fined not less than $5.00 nor more than $100.00, to be paid in money only."
He correctly states that the words "or by staggering, falling, or sleeping" found in the ordinance, are not found in the section of the Code cited. He argues from that that such difference between the ordinance and the Code section cited necessitates the conclusion the ordinance is inconsistent with the law of Alabama, which is inhibited by Code of Alabama 1975, § 11-45-1:
"Municipal corporations may from time to time adopt ordinances and resolutions not inconsistent with the laws of the state to carry into effect or discharge the powers and duties conferred by the applicable provisions of this title and any other applicable provisions of law and to provide for the safety,...
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Atchley v. State
...of the acts enumerated in the respective sections. Mitchell v. State, Ala.Cr.App., --- So.2d ---- (Ms. November 25, 1980); Plump v. State, Ala.Cr.App., 385 So.2d 1349, cert. denied, Ala., 385 So.2d 1351 (1980); Tatum v. State, 32 Ala.App. 128, 22 So.2d 350 (1945); Huckabee v. State, 34 Ala.......
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Tulley v. City of Jacksonville
...Tarrant City, Ala. Cr.App., 369 So.2d 322 (1979). See also Atchley v. State, Ala. Cr.App., 393 So.2d 1034 (1981) ; Plump v. City of Birmingham, Ala. Cr.App. 385 So.2d 1349, cert. denied, Ala., 385 So.2d 1351 (1980).” ’“Smith v. City of Huntsville, 515 So.2d 72, 74 (Ala.Crim.App.1986) (quoti......
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Lanier v. City of Newton, Ala., 86-7331
...of Tarrant City, Ala.Cr.App., 369 So.2d 322 (1979). See also Atchley v. State, Ala.Cr.App., 393 So.2d 1034 (1981); Plump v. City of Birmingham, Ala.Cr.App., 385 So.2d 1349, cert. denied, Ala., 385 So.2d 1351 "An ordinance which merely enlarges upon the provision of a statute by requiring mo......
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Smith v. City of Huntsville
...of Tarrant City, Ala.Cr.App., 369 So.2d 322 (1979). See also Atchley v. State, Ala.Cr.App., 393 So.2d 1034 (1981); Plump v. City of Birmingham, Ala.Cr.App., 385 So.2d 1349, cert. denied, Ala., 385 So.2d 1351 "An ordinance which merely enlarges upon the provision of a statute by requiring mo......