58 So. 949 | Ala. Ct. App. | 1912
The appellant was prosecuted in the mayor’s court of the city of Attalla for gambling in violation of an ordinance of the city, was convicted, and appealed to the city court of Gadsden, where the case
The appellant questions the validity of this ordinance, contending that it is void because inconsistent with and in excess of the general laws of the state, and therefore violative of section 89 of the Constitution of Alabama, prohibiting the legislature from authorizing a municipality to pass laws inconsistent with the general laws of the state. The appellant insists that as the state laws against gaming and gambling are confined to certain games and forms of gambling under specified conditions or circumstances, the city ordinance making it an offense to engage in gaming or gambling, without defining the games and limiting the gambling to conform to the state statutes on the same subject, exceeds the delegated authority conferred on the municipality, and that the ordinance is void because of inconsistency with the state law on the same subject. In other words, it seems to be the principal contention of the appellant that the ordinance is void because it prohibits by its terms all gaming and gambling, while under the state laws there is no prohibition against certain gaming, or engaging in certain games, and that gambling is not prohibited except as applied- to designated games or places.
“And the law is well settled, not only that an ordinance may be good and bad in parts, when the good provisions are separable from the bad, as in the case of statutes (Lowndes County v. Hunter, 49 Ala. 509; Powell v. State, 69 Ala. 10; Ballentyne v. Wickersham, 75 Ala. 537; Horr & Bemis Mun Ord. § 139; Wilcox v. Hemming, 58 Wis. 144, 15 N. W. 435, 46 Am. Rep. 625; Shelton v. Mobile, 30 Ala. 540, 68 Am. Dec. 143), but ‘that the fact that an ordinance covers matters which the city has no power to control, is no reason why it should not be enforced as to those which it may control’.”—Ex parte Cowert, 93 Ala. 94, 97, 9 South. 225. See, also, Ex parte Bizzell, 112 Ala. 210, 21 South. 371.
If an ordinance is valid in part and invalid in part, he who assails its validity must show himself to be affected by the provision alleged to be invalid.—Ex parte Byrd, 84 Ala. 17, 4 South. 307, 5 Am. St. Rep. 328.
That part of the ordinance against gambling under which the defendant was charged, tried, and convicted cannot be said to be void, and the principle that such valid part of an ordinance may be enforced when the case presented shows the defendant to be within its pro
The Legislature having delegated to the municipality the power to prohibit gaming (Code, § 1291), “it was al-together immaterial, in bestowing this power on the city, whether the State had created this offense against its own laws or not.”—Mayor, etc., of Talladega v. Fitzpatrick, 133 Ala. 613, 616, 32 South. 252. Even if no statute had been enacted by the state to punish persons for gaming, the municipality in passing a by-law for the enforcement of peace and good order of the city had authority under the delegated power to enact such an ordinance, and an offense against the state and the corporation are distinguishable.—Mayor, etc., of Talladega v. Fitzpatrick, supra.
The complaint filed was sufficiently definite to apprise the defendant of the nature and cause of the accusation.
The ordinance offered in evidence was properly admitted. It was identified by the city clerk by number, etc., and the clerk testified that the book in which the ordinance appeared was “the regular ordinance book” of the municipality. Code of 1907, § 1220.
No error is shown by the record, and the case will be affirmed.
Affirmed.