Mayor v. Allaire, 14 Ala. 400 (Ala.)

COLLIER, O. J.

The 15th section of the act of 1844, “ to consolidate the several acts of incorporation of the city of Mobile, and to alter and amend the same,” after declaring that the mayor, aldermen, &c. shall have full power and authority to pass all by-laws and ordinances to effect certain defined purposes, provides that they shall be authorized “ to

pass all such resolutions, by-laws and ordinances, as they, or a majority of them, may deem requisite and necessary for the good government of the said city, not contravening the laws of the State of Alabama.” It is enacted by the 44th section of the act, that the mayor, or either of the aldermen or common council-men, shall issue process as a justice of the peace for the city., for offences committed under this act, and for a breach of all or any of the by-laws or ordinances of the corporation, to the marshal, &c. who in pursuance thereof shall bring the offender before the mayor, &c.; and the mayor, &c. shall proceed to try the offenders, and examine all witnesses, &c. and give judgment as to him shall appear just and legal. If any such person shall be dissatisfied with the decision of the mayor, &c. he may appeal to the circuit or county court of Mobile, in all cases where the amount in controversy shall exceed $20, and the proceedings thereon shall be as prescribed by law in other cases of appeal.

We think it cannot be questioned that the ordinance on which the defendant was prosecuted was authorized by the powers conferred upon the corporation. The prompt suppression of riots, affrays, assaults and batteries, and other kindred offences, and the punishment of the offender, is certainly requisite and necessary for the good government of the city. It is a power exercised by most, if not all the municipal corporations in this country of the extent of Mobile, and this consideration, even if the question were doubtful, should incline us to hold that it was embraced by the general grant; the more especially as the only limitation prescribed is, that the ordinances, &c. contemplated, shall not be repugnant to the laws of the State.

In the Mayor of Baltimore v. Hughes’s adm’r, 1 Gill & Johns. Rep. 480, it was held, that a municipal corporation must act within the limits of its delegated authority, and cannot go beyond) it; this authority ought not by construction to be made to mean what is not clearly expressed; and when the ordinances of the corporation will admit of two 'constructions, they should receive that construction which is consistent with the power given, and not that which is in violation of it. Such a corporation has power to pass all laws necessary or proper to carry into effect any given power,

and the degree of their necessity or propriety should not be minutely scrutinized, but the court ought to see that they may be the means of accomplishing the object of the grant; the degree of their necessity is a subject for the judgment of the corporation, the court must determine whether they contribute in any degree to accomplish the object. Glenn v. The Mayor, &c. of Baltimore, 5 Gill & Johns. Rep. 424. See Duncan v. The Maryland Savings Institution, 10 Gill & Johns. Rep. 308.

In respect to the reasonableness of the ordinance, so far as the record informs us of its provisions, and the regularity of the proceedings to punish for the breach, we think no question can arise.

The object of the power conferred by the charter, and the purpose of the ordinance itself, was not to punish for an of-fence against the criminal justice of the country, but to provide a mere 'police regulation for the enforcement of good order and quiet within the limits of the corporation. So far as an offence has been committed against the public peace and morals, the corporate authorities have no power to inflict punishment, and we are not informed that they have attempted to arrogate it. It is altogether immaterial whether the State tribunal has interfered and exercised its powers in bringing the defendant before it to answer for the assault and battery; for whether he has been there punished or acquitted, is alike unimportant. The offence against the corporation and the State, we have seen are distinguishable, and wholly disconnected, and the prosecution at the suit of each proceeds upon a different hypothesis — the one contemplates the observance of the peace and good order of the city — the other has a more enlarged object in view, the maintenance of the peace and dignity of the State. See The State v. Estabrook, 6 Ala. Rep. 653; The Intendant, &c. of Marion v. Chandler, Id. 699; Rogers v. Jones, 1 Wend. Rep. 237; 1 Bay’s Rep. 382; The Mayor, &c. of Mobile v. Rouse, 8 Ala. Rep. 515; Page and another v. The State, 11 Ala. Rep. 849; Corporation of Greensboro’ v. Mullins and Barfield, 13 Ibid. 341. What we have said will sufficiently show the error in the ruling of the county court, and its judgment is consequently reversed and remanded.