Ex parte Bizzell

112 Ala. 210 | Ala. | 1895

HARALSON, J.

1. The petitioner, Walter Bizzell, as appears from the transcript before us, was arrested and carried before the mayor of Mobile, and tried and convicted “of the offense of violating 263, city ordinances.” None of the proceedings before the mayor are set out in the transcript. A mittimus addressed “To the cl lief of police or other police officer of the city of Mobile,” does appear as an exhibit to the petition for habeas eorpus, which commanded such officer to take the body of petitioner and keep him for the term of five days, and that he require petitioner to perform hard labor for the city of Mobile for that term, in default of the payment of the sum of $5, that being the amount of the fine and judgment that day — the 20th of July, 1896 — rendered against him by the mayor. The petition bases the illegal restraint of petitioner, of his liberty, on two grounds: “First. He [the petitioner] has not been charged with any specific offense under the ordinances of said city. Second. The ordinance under which petitioner was convicted and sentenced is illegal and void.”

The petitioner introduced in evidence on the trial before the judge who issued the writ, the ordinance, number 263, of the city, for the violation of which it was stated, he had been arrested by an officer on sight, carried before the. mayor, tried and convicted. The ordinance will be found in the report of the case.

2. It is settled by former adjudications of this court, that under our statutes, as at common law, the writ of habeas corpus is not a revisory remedy, and cannot be made to answer the purposes of an appeal, certiorari, or writ of error ; and when a judgment or sentence of another court is returned, as the cause of the prisoner’s detention or imprisonment, the jurisdiction of the court to render the judgment or sentence is the only matter that can be inquired into, and mere errors or irregularities in the proceeding are not available. ‘ ‘Error or irregularity may exist, but if it exists, it cannot be inquired into collaterally; it cannot render void and annul the sentence and judgment, a court of competent jurisdiction has pronounced.” The judgment must be void, not merely voidable. — Ex parte Simmons, 62 Ala. 416; Ex parte Hubbard, 65 Ala. 473; Ex parte Merlet, 71 Ala. 371; Code of 1886, § 4784.

The judgment of a justice of the peace or a mayor of a city with like authority, having jurisdiction conferred by law, to try and dispose of a criminal case, is as conclusive and rests upon the same basis, when the jurisdiction has attached, as the adjudication of any other common law court. No error in the proceedings which did not affect the jurisdiction will render the judgment void, nor can errors of the kind be considered when the judgment is collaterally assailed. Parol evidence is not admissible for the purpose. The illegality complained of must appear on the face of the proceedings. — Ex parte Davis, 95 Ala. 9, 15; Cotton v. Holloway, 96 Ala. 544, 550; Stevenson v. Murray, 87 Ala. 445; Lightsey v. Harris, 20 Ala. 409; 1 Black of Judgments, §§ 245, 255, 259, 286.

3. It is not disputed, that said ordinance was regularly enacted, nor is it questioned that the general council had authority under the charter of the city to enact it. The charter gives the mayor’s court the power of a justice of the peace of all criminal matters arising within the precinct of the city of Mobile, to try all offenders against its ordinances, and to render such judgment as may appear to be legal and just, with provision for an appeal by defendants to the circuit or city court. — § § 17 and 18 of charter, Acts 1886-87, pp. 234, 235.

It appeal’s from the transcript that the petitioner was arrested by an officer on sight, and was tried and convicted by the mayor for the violation of said ordinance No. 263. A policeman or town marshall, may, without warrant, arrest any person who commits a public offense in his presence. — Code of 1886, § 4262; Martin v. The State, 89 Ala. 115.

It will be noticed, that the ordinance referred to, contains several distinct provisions, creating several offenses. These provisions are not dependent on each other, but are severable and are capable of as distinct enforcement, as if several ordinances had been passed for the purpose. In such case, if some are valid and others invalid, those which are valid may be enforced and the rest may be rejected as invalid. — Mayor, &c., v. Alabama Great Southern Railroad Co., 98 Ala. 135.

The ordinance in question', as appears on its face, creates two or more offenses. It was proposed by petitioner to show by parol, that he was arrested while standing on the platform of the Union Railroad depot, in the city of Mobile, carried before the mayor and was tried and convicted for entering upon said platform contrary to the rules of the company, and that on the trial he demanded and was not furnished with a copy of any complaint setting forth the offense with which he was charged. In this proceeding we must presume that he was arraigned and tried upon one of the offenses designated in said ordinance, and if that part of the ordinance, making it an offense to enter upon the platform of the railroad, ‘ ‘contrary to the known rules of such railroad company,” is void, because the rules therein referred to are not set out in full, — a question we do not decide, — still, we may presume, in this proceeding, in order to sustain the judgment of the mayor, that the petitioner was arrested, tried and convicted for a violation of said ordinance in some of its other provisions, the validity of which is not questioned. The transcript states that he was tried and adjudged guilty of the offense of violating said section 263 of the city ordinances, which statement, is referable to any of the offenses therein created.

It is manifest that petitioner has mistaken his remedy. If error intervened in the proceeding before the mayor, the remedy was by appeal, and not by habeas corpus'. The city court judge had no authority to inquire into the regularity or justice of the judgment rendered, and properly dismissed the writ.

Habeas corpus denied.