City of Birmingham v. Stevens & Kerr

52 So. 590 | Ala. | 1910

ANDERSON, J.

As stated in brief of counsel for the appellant, the only question to be considered upon this appeal is the validity of an ordinance, set up in the special plea, in so far as it provides for a seizure and destruction of liquor held for unlawful purposes. Whether the state has the right to seize and destroy we need not decide, as the city would not have the right to do so, unless authorized by the Legislature, even if the right existed in the state. It is a well-established principle that municipal corporations can exercise only such powers as are clearly comprehended in the grant, or necessarily implied, or that may be incidental to the purpose and object of the corporation. — Ex parte Mayor of Florence, 78 Ala. 419. Section 1251 of the Code of 1907 authorizes municipal corporations to adopt ordinances not inconsistent with the laws of the state, and to provide for the safety, promote the health, etc., of the inhabitants, and to enforce obedience to such ordinances by fine not exceeding f 100 and by imprisonment or hard labor not exceeding six months, one or both. It is clear that the city derives no right to seize and destroy property under this section as a punishment for violating its ordinances, or to enforce obedience thereto, as the only right to punish is fixed by fine and imprisonment, one or both.

It is further insisted that section 1278 of the Code of 1907 gave the city the right to abate nuisances, and that the liquor was kept for unlawful purposes, and was therefore a nuisance per se. Whether it was or was not a nuisance, or the city would have the right to abate same summarily, and to destroy the property, upon that theory, which may be doubtful (29 Cyc. 1218), we need not decide, as the plea in question proceeds upon the idea that the defendant had the right to destroy the liquor because the plaintiff had been convicted for violating the prohibition law. The maintenance of a nuisance and the right to' abate the same, and to summarily destroy the liquor in order to do so, is-foreign to the said plea.

We have considered the only point argued and insisted upon in brief of counsel for appellant, and in disposing of same we do not wish to be understood as holding that the city would be liable for the acts of its officials in the enforcement of a void ordinance. — 20 Am. & Eng. Ency. of Law, p. 1195. The action of the trial court, however, in rendering judgment for the plaintiff upon the facts, is not urged as error in brief of counsel.

The judgment of the city court is affirmed.

Affirmed.

Dowdell, C. J., and Sayre and Evans, JJ., concur.