Turner v. Town of Lineville
| Citation | 56 So. 603,2 Ala.App. 454 |
| Parties | TURNER v. TOWN OF LINEVILLE. |
| Decision Date | 14 November 1911 |
| Court | Alabama Court of Appeals |
Appeal from Clay County Court; E. J. Garrison, Judge.
Howard Turner was convicted of violating an ordinance of the town of Lineville, and he appeals. Affirmed.
O. B Cornelius, for appellant.
Whatley & Cornelius, for appellee.
By proceeding to trial before the mayor without raising any question as to the sufficiency of the charge made against him, the defendant must be held to have waived in that tribunal any objection on that score. Mayor and Aldermen of Birmingham v. O'Hearn, 149 Ala. 307, 42 So. 836; McKinstry v. City of Tuscaloosa, 54 So. 629; Aderhold v. Mayor, etc., of Anniston, 99 Ala. 521. [1] The proceedings on the appeal to the county court were "governed in all respects by the laws regulating appeals from judgments of justices of the peace in criminal cases." Code, § 1451. Under the statute governing appeals from judgments of justices of the peace in criminal cases, if no objection to the sufficiency of the affidavit or warrant is raised before the justice, on the trial de novo had on appeal in the circuit or county court, a complaint may be there filed charging the defendant with a criminal offense, though the affidavit and warrant on which the defendant was tried before the justice of the peace did not charge any criminal offense whatever. Code, § 6723; Blankenshire v. State, 70 Ala. 10; Johnson v State, 105 Ala. 113, 17 So. 99. It follows in this case that the objections interposed in the county court to the allowance of the amended affidavit or complaint there filed were properly overruled, as in such case, under the authorities just cited, no objection could there be made to any inaccuracy or imperfection in the proceedings before the mayor.
Most of the grounds of the demurrer to the amended affidavit or complaint are disposed of adversely to the appellant by what has already been said. Under previous rulings on the subject it cannot be held that the complaint was subject to the ground of demurrer that it does not aver with sufficient certainty the violation of a town ordinance. The prevailing rule on the subject does not require that the ordinance be set out in hæc verba. Here the act charged was plainly averred to be in violation of the municipal ordinances on the subject. The complaint was not lacking in the requisite definiteness or certainty in this respect. Rosenberg v. City of Selma, 168 Ala. 195, 52 So. 742; Nashville, C. & St. L. Ry. v. Alabama City, 134 Ala. 414, 32 So. 731; Goldthwaite v. City Council of Montgomery, 50 Ala. 486; Kennamer v. State, 150 Ala. 74, 43 So. 482.
Pretermitting the consideration that the refusal of a continuance to the defendant because of the absence of his witnesses was a matter resting in the discretion of the trial court, it can be said that the record does not show that he had any just ground of complaint on this score, as it appeared that his verbal request to the clerk to issue subp nas for the witnesses was so expressed as to leave the clerk under the impression that the witnesses were to be summoned in another case then pending in the court against the defendant.
There is nothing in either of the ordinances offered in evidence "inconsistent with the laws of the state" within the meaning of that expression as used in section 1251 of the Code. Under that provision, a municipal ordinance is invalid in so far as it undertakes to supersede a state law within the municipality, or where its enforcement would be incompatible with the enforcement of a state law. But, where the ordinance in no way has the effect of contravening a state law, it is no objection to it that it provides for an additional regulation within the municipality of a matter which is also the subject of state regulation. Hewlett v Camp, 115 Ala. 499, 22 So. 137; 28 Cyc. 701. Nor is there anything in the statutes requiring that municipal regulations on subjects also dealt with by state laws shall conform in all respects to the regulations which the state has seen fit to...
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City of Dothan v. Holloway
..."The situation here seems not dissimilar, in principle, at least, to that dealt with in the opinion in the case of Turner v. Town of Lineville, 2 Ala.App. 454, 56 So. 603, 604, where this court said: 'Under "So we conclude and declare that appellant, by going to trial in the County Court, w......
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Peak v. City of Tuscaloosa, CR-09-0805
...would effect.'" Standard Chem. & Oil Co. v. City of Troy, 201 Ala. 89, 92, 77 So. 383, 386 (1917) (citing Turner v. Town of Lineville, 2 Ala. App. 454, 56 So. 603, 605 (1911)). Moreover, "'[t]o preempt an entire field, "an act must make manifest a legislative intent that no other enactment ......
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Peak v. City of Tuscaloosa
...would effect.’ ” Standard Chem. & Oil Co. v. City of Troy, 201 Ala. 89, 92, 77 So. 383, 386 (1917) (citing Turner v. Town of Lineville, 2 Ala.App. 454, 56 So. 603, 605 (1911)). Moreover, “ ‘[t]o preempt an entire field, “an act must make manifest a legislative intent that no other enactment......
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Glass v. City of Montgomery
... ... 75, 78, 67 So. 389, 390 ... (1914), citing in turn Turner v. Town of Lineville , ... 2 Ala.App. 454, 459, 56 So. 603, 605 (1911)). An ordinance is ... ...