Ferrell v. City of Opelika , 144 Ala. 135 ( 1905 )

HARALSON. J.

1. The ruling and judgment of the court on the motion.to strike, and on demurrer to the complaint, should appear in the judgment entry. The bill of exceptions is the proper place to show the circumstances, but the ruling- itself is a judgment and should appear in the record proper. — U. S. R. S. Co. v. Weir, 96 Ala. 401; 3 Brick. Dig. p. 78 § § 4, 7. The second entry of the ruling on the motion to strike is, “which motion being duly considered by the court, is by the court overruled,” and on demurrers to the complaint, the same “being by the court duly considered are by the court overruled and held for naught.” The same thing is true in reference to the motion to quash the complaint, and also to the pleas, as to which the judgment entry recited, “Demurrers to pleas 3, 4, 5, 6 and 7, as shown by the record, being by the court duly considered are by the court sustained.”

These were not sufficient or valid judgments, but merely a memorandum of the ruling of the court, and will not be reviewed on appeal. — Morgan v. Flexner, 105 Ala. 356; Hereford v. Combs, 126 Ala. 369; Cartlidge v. Sloan, 124 Ala. 596; B. L & I. Co. v. Dubose, 125 Ala. 442; Dantzler v. S. C. M. Co., 128 Ala. 410. Moreover, the assignments of error as to each of these rulings are too general to he considered. They do not conform to Rule 1, of Suprme Court Practice. — Williams v. Coosa Mfg. Co., 138 Ala. 673.

2. On the 12th of December, 1882, the Legislature passed an act to repeal the charter of the city of Opelika. Acts, 1882-3, p. 245. On the same day, it passed another act “To establish a new charter for the city of Opelika,” p. 245. By that act, it was provided in section 19, “That the said city council shall have the power and authority to pass all by-laws and ordinances 'that may be deemed necessary and proper for the government of said city, not inconsistent, with the laws of the state, and the-same to alter or repeal at pleasure.” In the same section, the council was given authority to take jurisdiction of assaults, and assaults and batteries, and to punish each offender by fine in sum not to exceed $50.00,” etc., which provision is immediately followed by another, “and generally to impose fines for violations of city ordinances and collect the same,” etc. This latter provision, and the one first quoted above, referred to violations of city ordinances in general, and not to the special power conferred to try and fine offenders for assaults and assaults and batteries, which were criminal offenses against the state. .

On the 19th of February, 1883, the Legislature passed another act, “To incorporate the district of Opelika and provide for the government thereof.” — Acts, 1882-3, p. 485. This act provided that it should go into effect from and after its passage, and that all laws and parts of laws in conflict with its provisions were'thereby repealed. This act contained the same provisions as did the charter of the city just referred to in reference to assaults and assaults and batteries, and the power to pass ordinances generally for the good of the district.

On the 20th of February, 1899, the Legislature passed another act, “To establish a new charter for the district of Opelika,” which contained like provisions as to assaults and assaults and batteries, and the passage of laws generally for the good of the district, as the two last acts already referred to.

Thereafter, on the 21st of February, 1899, an act was passed “To change the corporate name of the district, to the name of the city of Opelika. Said act of the 20th of February to establish a new charter for the district of Opelika, contained the provision that “all existing laws and ordinances of said city, adopted in pursuance of said law, shall remain in force until repealed or modified by the board; as far as the same are not in conflict with this charter, and all powers granted by this act must be liberally construed in favor of the power of the city to pass such laws.”

The change of the city charter does not affect existing ordinances in harmony with new provisions. — Dillon on Mun. Corp. §§ 85, 419.

Under the old charters, the city or district had the power to pass the ordinance set out in the complaint, and it was continued in force and effect by the charter itself. The limits of the city under the new charter and the district acts were identical.

The objections to the introduction of the ordinance set out in the complaint, were without merit and properly overruled.

“Any place, which for the time is made public by the assemblage of people, is a public place within the meaning of the act against gaming.” — Campbell v. State, 17 Ala. 369. “Any house to which all.who wish may go, night or day, and indulge in gaming is a public place, Avithin the meaning of the statute.” — Smith v. State, 52 Ala. 384; Jacobson v. State, 55 Ala. 151.

Prima facie, a dwelling is a private place, but when the evidence tends to show that it is used for other than private purposes, and as a resort by those who would indulge in gaming, the question of its being also- a “public place”, under the statute, is properly left to the jury. 1 Mayfield’s Dig. 372, § 94.

• The use of the word “public” in the sentence — “the idea of a public meeting place for the neighborhood,”— as employed in the concluding part of 'the charge re quested for defendant, was calculated to mislead the jury, and Avas on that account, if for no other, not improperly refused.

Affirmed.

McClellan, C. J., Dowdell and Denson, JJ., concurring.