The Birmingham age-herald., 1906-10-07
GAMBLING CASES
 ARE DISMISSED Prosecution Without Warrant, Illegal and Unconstitutional DECISION IS OF INTEREST
Judge Dan A. Greene Delivers Written Opinion Covering the Question of Prosecutions for Violation of
 Municipal Ordinances.

legally stopped in the city of Brming ham there must be more legislation on the subject.
 The decision of Judge Dan A. Greene rendered in the case appealed from the and in detail the power and author ity of municipalities to inflct and col lect fines imposed for violations of city ordinances.
 This decision has been awaited with considerable interest by all concerned as 1t governs many more cases of similar nature, all of which will now be dismiss ed from the docket
 Judge Greene relies upon the old com mon law to prove the constitutional rights of the citizen to know the nature of the offense with which he is charged and that the same be set forth in writing.
 The opinion covers several pages of closely written matter from which the following extracts are taken:
 Mayor and Aldermen of Birmingham vs J. E. OHearn.
 "The questions involved in this case are more or less uncertain due to the fact that they have never been fairly presented to the higher courts.
 "The defendant is charged with a vio- lation of the municipal ordinances of the city of Birmingham as to vagrancy, as is shown by the written complaint or infor- nation filed for the first time in this court. The question raised by the defend ant on his motion to quash attacks the validity of the proceedings In the police court. It alleges that the arrest of the defendant was illegal and that there was no warrant or other process for his ar rest nor were there any other facts to authorize his arrest.
 "Pretermitting the legality of the ar rest the most serious question raised is whether or not there can be legal trial in the police court without some affidavit, information or other form of complaint, sufficient to inform the defendant of the nature and form of the accusation against him."
 Municipal Ordinances.
 The judge then proceeds to give the history and origin of prosecutions for vio- lations of municipal ordinances But" said he, there are certain well recog- nized fundamental principles appertain- ing to the constitutional rights of the citizen that are indispensable to every judicial proceeding, whatever It's nature. Among the most vital of these Is the right of every citizen In all criminal prosecutions to demand the nature and cause of the accusation and to have copy thereof
 L.. 1fr stitutional provision apply at alto prose- cutions for violations of mu--..pal ordi- nances, and, If so Is mere oral state ment by the judge or clerk of the police court, or the arrestlng officer, giving the name of the offense with which the de- fendant Is charged, sufficient compliance with this constitutional provision?
 Municipal courts derive their authority from the powers contained in their char ter, but their procedure must conform either with the state laws or the com mon law and at common law some sort of information or complaint is deemed necessary when demanded."-15 A. and E. Ency. P. and P. All. Blackstone Com. 2S0.
 The same principle is laid down in Hon. Nun. Ord. sec. 172. McQuillin Nun. Ord. sec. 303-5.
 "The next inquiry is. has the legislature either by general law or in the charter of the city of Birmingham, or in the act cre- ating the police court of Birmingham, given any authority to the municipality or court to dispense with these elemental forms of procedure? Counsel offers noth- oP
 The Supreme Court.
 Prhe supreme court of Alabama has in- dicated that In all such cases some sort of information, affidavit or complaint is q necessary prerequisite upon a trial for the enforcement of city ordinances. Pro ceedings for the recovery of fines and penalties for the violation of municipal ordinances are quasi-crimnal in character and as such should be conducted with greater regard to strictness than attaches to proceedings in civil cases
 Brown vs. city of Mobile, 23 Ala. 722, which doctrine has he reaffirmed in Ahle- rics vs. Cullman, 13O Ala. 442
 "From all the authorities to be found, whether treating the proceedings as civil, criminal or quasi-criminal, the conclusion to be reached is that the only legal way to prosecute for the violation of muni- clpal ordinance is by affidavit or com paint
 Conclusion Reached.
 "The conclusion reached from these views are: l. That some affidavit or complaint is necessary in the trial for violation of municipal ordinances.
 2 Objections for failure to furnish same should be made in the lower court, other wise they are not available 8. Such affidavit or complaint must be L. iA Ai...r r..aI Io s.in