Ex Parte Rhodes , 202 Ala. 68 ( 1918 )

The question presented for review is the validity of section 839 of the 1905 Code of the City of Birmingham. It reads:

"Arrest Without Warrant When and by Whom Made. — It is the duty of the chief of police and every policeman to arrest without warrant, all persons found violating any ordinance of the city, or whom he has reason to believe has violated any city ordinance, or against whom there is a charge made by any citizen for violating any city or state law, all persons found disturbing the peace by disorderly conduct, all persons found drunk on the public streets, or in any public place in the city, etc."

This ordinance was given its present amended, corrected form after the pronouncement made in Gambill v. Schmuck, 131 Ala. 331,332, 31 So. 604. In the new charter of the city of Birmingham, approved February 23, 1899 (Weakley's Local Laws of Jefferson County, p. 164), it was provided in subdivision 25 of section 25:

"To pass all laws necessary and proper for the arrest, with or without warrants, of any person against whom there is a charge made by any citizen for violating any city or state law; to pass all laws needful for the issue and execution of such warrants."

The validity of the ordinance under consideration is pointedly sustained by the authority of Childers v. State,156 Ala. 96, 47 So. 70. There the defendant, a police officer of the city of Bessemer, was on trial for an assault and battery "committed," to quote the statement of that case, "if at all, by making the arrest" of Louis Baggett. The defendant sought to justify through a plea asserting that he arrested Baggett on a "verbal complaint" and that "the charter of Bessemer and its ordinances authorized and empowered its police officers to arrest without warrant." The court sustained the demurrer to the plea, and this court concluded there was error in that regard and reversed the judgment. Two objections, based upon the provisions of sections 5 and 89, respectively, of the Constitution of 1901, were taken by the demurrer; and both were held to be without merit. Section 5 of the Constitution of 1901 is the same as section 7 of article 1 of the Constitution of 1868. The inhibition (section 5) was then, and is now, this:

"That the people shall be secure in their persons, houses, papers, and possessions from unreasonable seizure or searches, and that no warrants shall issue to search any place or to seize any person or thing without probable cause, supported by oath or affirmation."

In Williams v. State, 44 Ala. 41, decided in 1870, having under consideration the like provision in the Constitution of 1868, this court held that the inhibition was against the issuance of the warrant, "not arrest without warrant." The inhibition was carried forward into the Constitution of 1875; and this reordination operated to adopt as a part of the section the construction given it in 1870 in Williams v. State, supra. 11 Mich. Ala. Dig. p. 1114, where many decisions are noted. In Ex parte Thomas, 100 Ala. 102, 13 So. 517, decided in 1893, the pertinent pronouncement of the Williams Case, supra, was reaffirmed. In the full light and effect of these decisions, the Constitution of 1901 reordained in section 5 the same provisions that were considered and defined in the Williams and Thomas Cases, supra. Not since the Constitution of 1875 was adopted, with the stated explicit construction put upon it in the Williams Case, could it have been soundly insisted that the subject-matter of what is section 5 of the Constitution of 1901 applied to restrain the otherwise unlimited legislative power to authorize arrests without warrant. In the Childers Case, itself decided nearly 10 years ago, the court but followed and applied the well-known settled law in this regard, aptly expressing the conclusion as follows:

"There being no constitutional prohibition, state or federal, it is undoubtedly within legislative competency by statute to authorize an officer to make an arrest without a warrant for either a felony or misdemeanor, whether the offense be one committed in or out of the presence of the arresting officer."

The other objection is that section 839 of the 1905 City Code of Birmingham is the product of a legislative charter (subdivision 25 of section 25, quoted ante) authorization that offends section 89 of the Constitution, which reads:

"The Legislature shall not have power to authorize any municipal corporation to pass any laws inconsistent with the general laws of this state."

The same provision was in section 50 of article 4 of the Constitution of 1875. It was considered in Ex parte Cowert,92 Ala. 94, 100, 101, 9 So. 225, 227. The court there held, and accordingly pronounced:

"This conclusion renders it unnecessary to decide whether the General Assembly may authorize a municipal corporation, in which the general law of the state as to licensing the sale of liquors is in force, to prohibit that traffic, the general state law to the contrary notwithstanding. We are, however, of the opinion, based on exhaustive investigation and consideration, that such authorization would not be violative of article 4, § 50, of the Constitution. We do not think thepurpose or effect of that provision is, in any manner, to limitthe Legislature in conferring police powers on municipalcorporations." (Italics supplied.)

The construction there taken of section 89, or its parent in the Constitution of 1875, has not been since even qualified, much less repudiated. The identical provisions of section 50, art. 4, of the former Constitution, were reordained, as section 89, in the Constitution of 1901; whereupon the construction accorded in the Cowert Case conclusively characterizes the effect of section 89. The before-quoted provisions of the Birmingham charter are plainly referable to police power which, the court expressly decided in the Cowert Case, was not within the restriction of section 50, art. 4, now section 89 of the present organic law. In view of the established construction of section 89 of the Constitution, it is very clear and certain that section 839 of the 1905 Code of Birmingham was not invalid because the charter (subdivision 25 of section 25, ante) offended section 89 of the present organic law. As was held in the Childers Case, supra, there is nothing whatever in the Bill of Rights or elsewhere in the Constitution of 1901 that restrained or restrains the Legislature in authorizing the arrest of persons without warrant.

Aside from the provisions of section 89 — which is addressed to the restraint of the Legislature, only, with respect to matters not referable to the police power — there is a rule of restraint that inhibits municipal corporations from enacting ordinances inconsistent with state laws in virtue of charter powers that are general, not specific. The rule is thus correctly stated in Dunn v. Wilcox County, 85 Ala. 147,4 So. 662:

"The American theory of municipalities is that the legislation permitted to be exercised by them is a mere delegation of the power of the state; and hence it is an established rule that all laws or ordinances enacted by virtue of this delegated power are, in a certain sense, as much part of the general system of legislation as are the laws of the state; and 'it is therefore necessary that they should be consistent with the state laws.' * * * It is accordingly a familiar rule on this subject that municipal by-laws and ordinances, in conflict with the general law, will be adjudged void, unless they be clearly authorized by the charter of theparticular town or city enacting them. * * *" (Italics supplied.)

This doctrine was recently advisedly applied in Ward v. Markstein, 196 Ala. 209, 215-217, 72 So. 41. It is also announced in McQuillin on Municipal Ordinances, § 16.

In the instance now under consideration, the Legislature, through the quoted charter provision, specifically authorized the city to empower its police officers to arrest without warrant; and the ordinance (section 839) conformed, literally, to the specific charter grant. Under that specific grant, the authority to arrest without warrant was upon the condition that a "charge" should be made by "any citizen." The term "charge," as employed in the charter and in section 839 of the City Code of 1905, did not contemplate or intend a charge expressed in the form or through the method of a written information or an affidavit. The charge, within those laws, was made if advice of an offense against the laws was verbally communicated to the police officer by "any citizen." As therein used, the term signified an accusation, however communicated, by "any citizen" that a person had committed an offense against the laws mentioned in the charter (subdivision 25, § 25, of the charter). It cannot be supposed that the Legislature would authorize arrests by municipal officers, without warrant, and yet burden the purpose manifested thereby with the exaction that, to meet, would require the complaining citizen to seek out some one authorized to take affidavits who, generally, is also authorized to issue warrants for the arrest of offenders so formally accused. The legislative purpose was to afford the means for prompt arrests. This purpose would not have been accomplished if a formal, written, verified accusation had been required. Manifestly, the object intended would not have been attained. The reason inspiring the lawmakers to thus discriminatively provide is succinctly indicated in McQuillin on Municipal Ordinances, § 17, and notes.

Reference to the opinion of this court on former appeal (192 Ala. 675, 682, par. 10, 69 So. 69) discloses that the question now presented was not decided.

It is hardly necessary to add that the adoption of the Municipal Code (Pol. Code, c. 32; Acts 1907, p. 790 et seq.) did not effect the repeal of section 839 of the 1905 City Code of Birmingham. Sloss-Sheffield Co. v. Smith, 175 Ala. 260,57 So. 29.

In my opinion the writ prayed for should be granted, the conclusion of the Court of Appeals on the question stated being laid in error.