Turner v. Town of Lineville

56 So. 603 | Ala. Ct. App. | 1911

WALKER, P. J.

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 South. 836; McKinstry v. City of Tuscaloosa, 171 Ala.; 54 South. 629; Aderhold v. Mayor, etc., of Anniston, 99 Ala. 521. 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, § 6743; Blankenshire v. State, 70 Ala. 10; Johnson v. State, 105 Ala. 113, 17 South. 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 tbe ordinance be set out in Iubc verba. Here the act charged wms plainly averred to be in violation of the municipal ordinances on the subject. The complaint wras not lacking in the requisite definiteness or certainty in this respect. Rosenberg v. City of Selma, 168 Ala. 195, 52 South. 742; Nashville, C. & St. Ry. v Alabama City, 134 Ala. 414, 32 South, 731; Goldthwaite v. City Council of Montgomery, 50 Ala. 486; Kennamer v. State, 150 Ala. 74, 43 South. 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 subpoenas 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 or-d manee 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 South, 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 prescribe.

The provision of section 1222 of the Code (section 68, Municipal Code Act of 1907, p. 825) that “the limits of the fine shall be the same as the limits imposed by the state for the same affense,” etc., is a regulation affecting the exercise of the jurisdiction conferred upon the recorder in the matter of the enforcement of state criminal laws, and is not a limitation upon the power of municipalities in the matter of municipal regulations upon subjects which may also be dealt with by the state in its criminal statutes. Section 1216 of the Code prescribes the kinds and limits of punishment that may be imposed for violation of municipal ordinances. The general purpose of the Municipal Code was to leave unimpaired, if not enlarged, the powers and duties- of municipalities in the matter of police regulations, so long as they are not “inconsistent with the laws of the state.” Code, § 1251; Rosenberg v. City of Selma, 168 Ala. 195; 52 South. 742; Culpepper v. Adams, 172 Ala., 55 South. 325.

The penalties authorized by the ordinances against the sale or other disposition of intoxicants- which were offered in evidence were.within the limits prescribed in section 1216 of the Code. This being true, those ordinances were not rendered invalid because the minimum penalty for their violation was a fine less than that authorized by the state criminal laws on the same subject. Whether a conviction under such an ordinance followed by a fine less than is authorized under the state laws on this subject could be pleaded in bar of any prosecution under the state law, as authorized (Code, §-1222) when such prosecution is “for the same, or substantially the same, offense,” is a question not -decided, as it is not presented in this case. What has been said above disposes of the grounds- of objection urged in argument against the validity of the ordinances which were admitted in evidence.

Affirmed.