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THORNELL v. CITY OF MONTGOMERY12/20/1996
The appellant, Thomas C. Thornell, was convicted in Montgomery Municipal Court for driving under the influence ("DUI") pursuant to the Montgomery Municipal Ordinance No. 125-79, which incorporates by reference § 32-5A-191, Code of Alabama 1975. Thornell appealed for a trial de novo to the Circuit Court for Montgomery County. He pleaded guilty to DUI and was sentenced to 60 days in the county jail: that sentence was suspended and he was placed on unsupervised probation for one year and was ordered to pay a $400 fine. The appellant raises only one issue on appeal.
The appellant contends that the penalties provision included in § 32-5A-191, the DUI statute, was enacted after the City of Montgomery ordinance no. 125-79; therefore, he argues, it could not lawfully be applied to him. The ordinance addressing the adoption of state law into the municipal code provides as follows:
"BE IT ORDAINED BY THE COUNCIL OF THE CITY OF MONTGOMERY, ALABAMA, That Section 1-8 of the City Code is hereby amended to read as follows:
"Section 1. Any person or corporation committing an offense within the corporate limits of the city of Montgomery, Alabama, or within the police jurisdiction thereof, which is declared by a law or laws of the State of Alabama now existing or hereafter enacted to be a misdemeanor, shall be guilty of an offense against the City of Montgomery, Alabama.
"Section 2. Any person or corporation committing an offense within the corporate limits of the City of Montgomery, Alabama, or within the police jurisdiction thereof, which is declared by a law or laws of the State of Alabama now existing or hereafter enacted to be a violation, shall be guilty of an offense against the City of Montgomery, Alabama.
"Section 3. Any person or corporation committing within the corporate limits of the City of Montgomery, Alabama, or within the police jurisdiction thereof, an offense as defined by Section 13A-1-2 of the Alabama Criminal Code, which offense is not declared by a law or laws of the State of Alabama now existing or hereafter enacted to be a felony, misdemeanor or violation, shall be guilty of an offense against the City of Montgomery, Alabama.
"Section 4. Any person found to be in violation of Sections One(1), Two (2) or Three (3) of this ordinance shall, upon conviction, be punished by a fine or not less than One Dollar ($1.00) nor more than Five Hundred Dollars ($500.00) and/or may be imprisoned or sentenced to hard labor for the city for a period not exceeding six (6) months, at the discretion of the Court trying the case. Any corporation
found to be in violation of Section One (1), Two (2) or Three (3) of this ordinance shall, upon conviction, be punished by a fine of not less than One Dollar ($1.00) nor more than Five Hundred Dollars ($500.00), at the discretion of the court trying the case.
"Section 5. All ordinances heretofore adopted by the Council of the City of Montgomery, Alabama, which declared all State misdemeanors to be municipal offenses are hereby expressly repealed.
"Section 6. If any part, section or subdivision of this ordinance shall be held unconstitutional or invalid for any reason, such holding shall not be construed to invalidate or impair the remainder of this ordinance, which shall continue in full force and effect notwithstanding such holding.
"Section 7. This ordinance shall become effective on January 1, 1980."
(Emphasis added.)
The appellant contends that the Circuit Court for Montgomery County had jurisdiction to hear his case based on ordinance no. 125-79 alone, and not on the state statute, because, he says, the ordinance was not a
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