Shelton v. Mayor of Mobile , 30 Ala. 540 ( 1857 )

WALKER, J.

We do not assent !to the argument of appellant’s counsel against the validity of the ordinance, under which the fine in this case was inflicted. We do not deem it vioiative of the constitution, or of common right, or void because it is unreasonable. It does not prohibit the exercise of a right, but regulates it. This ordinance may be sustained by the same argument by which Mr. Justice Ormond maintained the constitutionality and reasonableness of an act authorizing the corporation of Mobile to license bakers, to regulate the weight and price of bread, and prohibit the baking for sale, except by those licensed. We refer to that argument, reported in the case of the Mayor and Aldermen of Mobile v. Yuille, 3 Ala. 137, which is not overruled in this respect by the Mayor and Aldermen of Huntsville v. Phelps, 27 Ala. 55, as covering the disputed' ground in this case.

The decision as to the constitutionality of the statute regulating the mode of carrying arms, also, contributes to maintain the validity of the ordinance. — State v. Reid, 1 Ala. 612. See also the cases of Respublica v. Duquet, 2 Yeates, 493; Wadleigh v. Gilman, 12 Maine, (3 Fair,) 403, in which tbe constitutionality of municipal legislation prohibiting the erection > of wooden buildings in- cities is maintained ; City Council of Montgomery v. Hutchison, 13 Ala. 573. ¥e find nothing unreasonable in the ordinance. On the contrary, it is a-regulation "to which the convenience and welfare of most (if not all) cities have required them to resort.

The corporation "has, in its" charter,' express power" to prohibit the sale of meats, poultry, fish, and game, except 1 at the public market. ' ’ If it has not the power under the charter to make the same prohibition' as to things" not "included in the express authority, (a point which we do not’ decide,) the ordinance would hot be void as to those " things "within the charter, because it is as to those without the charter. The rule is, that"if a by-law consist' of several distinct and independent pkrts, although one or more ' of them may be void,' the rest‘aré equally valid as though the void clauses had been omitted. — Wilcock on Cor. 161, § 389; Mobile v. Ohio R. R. Co. v. The State, 29 Ala.

The judgment of the court below" is affirmed.