Thomas v. City of Mobile

• Decision Date: 24 April 1919
• Docket Number: 1 Div. 90
• Parties: THOMAS v. CITY OF MOBILE.
• Court: Alabama Supreme Court

82 So. 110

203 Ala. 96

THOMAS v. CITY OF MOBILE.

1 Div. 90

Supreme Court of Alabama

April 24, 1919

Rehearing Denied May 22, 1919

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Robert Thomas was convicted of violating an ordinance prohibiting traffic in forbidden liquors, and he appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

Bart B Chamberlain and R.E. Cunningham, both of Mobile, for appellant.

Robert H. Smith, of Mobile, for appellee.

McCLELLAN J.

The appellant, being first convicted in the recorder's court of violating an ordinance of the city of Mobile prohibiting the traffic, etc., in forbidden liquors, took an appeal to the circuit court, where the jury found him guilty and assessed a fine of $50. On sentence, the court imposed upon him an additional penalty of 90 days at hard labor for the city. This appeal brings into question the authority of the court to impose the additional penalty, where, as here, the jury imposed a fine only.

Section 24 (amended) of the ordinance provides:

"That any person, firm, association or corporation violating any provision of this ordinance shall, upon conviction, be fined not less than fifty dollars, nor more than one hundred dollars, and to which may be added in the discretion of the judge of the court trying the case confinement in the city prison or to hard labor for the city for a period of not exceeding six months." (Italics supplied.)

It is provided in Code, § 1217:

"The case appealed shall be tried de novo in such court and the judge or jury trying such cause is authorized to impose upon the person convicted such punishment by fine or by imprisonment in the city jail, or other place of confinement, or hard labor for the city, or by fine and imprisonment, as the court or jury may deem proper and is authorized by law or ordinance for such offenses."

As appears from the quotation ante, this ordinance authorized the judge trying the case to add a term (not exceeding six months) at hard labor. The last sentence in the quotation (ante) from Code, § 1217, invests the court to which the appeal is taken with the ordinance authority to impose the added penalty, by providing that the punishment authorized by the "ordinance for such offenses" might be imposed. The terms "judge" and "jury" in that statute were not intended to limit the operation of ordinances like this one, with the effect of only...