Opinion
8 Div. 500.
March 19, 1946.
Appeal from Circuit Court, Marshall County; W. J. Haralson, Judge.
Prosecution instituted by the Town of Boaz against J. W. Jenkins and others for violation of a municipal ordinance. From a judgment declaring the ordinance to be invalid in part and discharging the defendants, plaintiff appeals.
Affirmed.
J. W. Brown and E. B. Black, both of Boaz, for appellant.
The statute provides that cities and towns have the power to restrain and prohibit gaming, and since the legislature has delegated the power to the municipality, it is immaterial whether or not the State has created the offense against its own laws. Code 1940, Tit. 37, § 486; Little v. Attalla, 4 Ala. App. 287, 58 So. 949; Turner v. Town of Lineville, 2 Ala. App. 454, 56 So. 603; Nelson v. Roanoke, 24 Ala. App. 277, 135 So. 312. An ordinance may be valid in part and invalid in part, and the valid part may be enforced against one coming within its provisions. Kreulhaus v. Birmingham, 164 Ala. 623, 51 So. 297, 26 L.R.A., N.S., 492; Ex parte Byrd, 84 Ala. 17, 4 So. 397, 5 Am.St.Rep. 328. The rule that a municipal ordinance in conflict with a state law upon the same subject is void does not apply unless the state law with which the particular ordinance conflicts is intended to apply and is, in fact, applicable and operative in the particular municipality in which said ordinance has been enacted. 43 C.J. 218, 222, §§ 220(b), 223(d); McLaughlin v. Stephens, C.C.D.C., 16 Fed. Cas. 8,874, 2 Cranch C.C. 148; Birmingham etc. Co. v. Milbrat, 201 Ala. 368, 78 So. 224; Talladega v. Fitzpatrick, 133 Ala. 613, 32 So. 252.
Herbert H. Conway, of Albertville, for appellees.
The legislature may not authorize a municipality to pass laws inconsistent with the general laws of the State. Constitution 1901, Sec. 89. The power of a municipal corporation in passing laws is limited by Code 1940, Tit. 37, § 455. Section 436, Title 37, of the Code prohibits gaming and directs how the police officers shall proceed with enforcement of the law. This prosecution was based on an ordinance passed under authority of sections 263, 267, Title 14, of the Code. There being no evidence to sustain the charge, any ruling of the court below was without injury and cannot work a reversal. Supreme Court Rule 45, Code, Tit. 7, p. 1022.
Section 80, Chapter 31 of the Municipal Code of the Town of Boaz is as follows:
Chapter 31, Section 80. "Betting at Cards, Dice etc.
"It shall be unlawful for any person to bet or hazard any money, bond, note or other things of value, at any game played with cards, or dice, or any device or substitute therefor, or any game of chance or skill, whether publicly or privately."
On 26 February 1945, police officers of the Town of Boaz, without any warrant or writ of any nature whatsoever, entered the home of J. W. Jenkins, located in the police jurisdiction of Boaz. There they found Jenkins and seven other men. Some of the men were seated around a table on which were scattered playing cards and seven dollars and fifty cents, and those not seated were standing around in the room. The officers did not observe any actual game in progress. No effort was made by the prosecution to establish which of the men were actually at the table or which were merely in the room. In fact Jenkins was the only person mentioned by name in examination of witnesses by counsel for the Town at the trial in the court below. Regardless of the unsatisfactory state of the evidence presented by the Town as to the men involved other than Jenkins we refrain from passing on its sufficiency since the case must be affirmed on other grounds.
At the conclusion of the prosecution's case in the court below the defendants rested and moved the court to take the case from the jury and discharge the defendants. The court granted the motion, stating that it was the court's view that the ordinance, supra, went further than the State law and was invalid in so far as it prohibited gaming in a private home. Judgment entry to this effect appears in the record.
No competent evidence shows that Jenkins had by any acts and conduct changed the character of his home from a private dwelling to a public place. Such being the case the acts of the defendants violated no State law, which prohibits gaming in a public place. See Section 263, Title 14, Code of Alabama 1940.
The question then arises as to whether the Town of Boaz can enact an ordinance going beyond the State Statutes and prohibit gaming in a private as well as a public place.
Certainly the ordinance is not invalid in toto because a part may go beyond the permissible legislative power of the town, provided the good part is severable from the offensive portion. Little v. City of Attalla, 4 Ala. App. 287, 58 So. 949. However, that part of the ordinance prohibiting gaming privately is inconsistent with the policy of the State as evidenced by the State Statutes pertaining thereto, and that portion of the ordinance is invalid. A similar question was presented in the case of Ligon v. City of Gadsden, 21 Ala. App. 312, 107 So. 733, 734, and the late Judge Rice wrote:
"The municipality is the creature of the state. In other words, the city lives by and through and for the purposes of the state, and we think it not only inconsistent, but is also unreasonable, for the creature to have and exercise more power and authority than the creator. By its laws, the state says to this appellant, in effect: You are at liberty to do all and every the acts complained of, and in so doing you violate no law of this sovereignty. For the municipality to say no, you shall do no such thing, is, in our opinion, a conflict, an inconsistency, and an unreasonable status, even under the flexible rule of police powers. The police powers have never been construed to take precedence over the Constitution of the state. Article 1, § 5, of Const. 1901, provides:
" 'That the people shall be secure in their persons, houses, papers, and possessions from unreasonable seizure or searches,' etc.
"It is true that a man may make a public place of his private residence by certain acts and conduct. This has been definitely decided many times in this state."
We think the above quoted language is decisive of this case.
While the procedure followed in discharging the defendants was irregular, a request for the affirmative charge by the defendants, or a motion to exclude the evidence being the indicated procedure, this irregular procedure is immaterial in this case, as the result reached was the only allowable result in view of the invalidity of that portion of the ordinance covering the shown conduct of the defendants.
We have considered the rulings of the court as to the admissibility or exclusion of certain evidence arising during the trial. In our opinion the rulings of the trial court were so basically correct that no discussion of this phase of the record is indicated.
Affirmed.