The opinion
BROWN, J.
(Dissenting.) — This prosecution was commenced by the appellant on the 5th day of April, 1913, before one of its recorders, against appellee, charging that appellee,-before the commencement of the prosecution, and within the police jurisdiction of the city, on, to-wit the 14th day of December, 1912, published, gave way, sold, or caused to be published, given away, circulated, or sold, a certain newspaper or print, commonly known as Howie’s Iconoclast, which newspaper or print was of an obscene, licentious, lewd, or libelous nature,” in violation of section 1044 of the Code of Ordinances of the city of Birmingham. The appellee was convicted in the recorder’s court and appealed to the criminal court of Jefferson county. In that court motion was made to quash the complaint and discharge the defendant on the ground that the prosecution was commenced more than 60 days after the offense was alleged to have been committed. In support of this motion, appellee exhibited to the court as evidence the warrant of arrest bearing date April 5, 1913, and the appellant offered in opposition to the motion section 835 of the Code of *663 Ordinances providing: “Prosecutions for violation of the city, ordinances must he commenced within twelve months after the commission of the act or offense complained of, and may be begun by summons or warrant of arrest, or by arrest without warrant, in the manner hereinafter prescribed.”
The court granted the motion, quashed the complaint, and discharged the defendant, as appears on the theory that section 835, supra, was in conflict with section 7348 of the Code of 1907, providing that “prosecutions before a justice of the peace' for offenses within his jurisdiction, unless otherwise provided, must be commenced within sixty days next after the commission of the offense” and that said section 835 of the Code of Ordinances was therefore void. This appeal is brought under the provisions of section 1220 of the Code to review that judgment of the criminal court.
It is so manifest that there is no conflict between the statutes and the Code of Ordinances in the particular above set out that there is no room for argument to sustain appellee’s contention. One applies exclusively to prosecutions for violation of the by-laws and ordinances of the city, and has no application whatever to offenses within the jurisdiction of justices of the peace, and its provisions are expressly limited to that class of offenses. To bring prosecutions for the violation of municipal ordinances within the purview of the provisions of section 7348 of the Code will require an amendment of the statute, the exercise of legislative functions, a function vested by the Constitution in the Legislature, and notin the courts. — Const. 1901, § 44.
The reasoning in the majority opinion as to the construction of the statute defining the duties, jurisdiction, and powers of recorders is “overfine” and illogical. These statutes should not be dissected and each clause construed to itself; they are in pari materia, and should be *664 construed together, and when so construed, they confer upon the recorders of cities and towns: (1) Exclusive original jurisdiction of all offenses for the violation of the ordinances and by-laws of the municipality, subject to the right of appeal to the-circuit court or courts of like jurisdiction; (2) jurisdiction concurrent with the county court of all misdemeanors committed within the police jurisdiction of the municipality; and (3) the powers of a justice of the peace sitting as a magistrate with jurisdiction to hear preliminary trials for all offenses not within the final jurisdiction of the recorder, and with authority to issue warrants in criminal cases returnable to county courts, or courts of like jurisdiction and procedure.
Section 1215 of the Code, in its very terms, is a general grant of jurisdiction, authority, and power, and deals with all the classes of jurisdiction conferred on the recorder and more specifically defined and limited in the succeeding sections. This section provides: “Such recorder is especially vested with and may exercise in the city, and within the police jurisdiction thereof, full jurisdiction in criminal and quasi criminal matter's * * * and.-shall have the powers of an ex officio justice of the peace except in civil matters.”
Section 1216 specifically defines the jurisdiction and power of the recorder as to the enforcement of by-laws and ordinances of the corporation, section 1217 provides for and regulates the right of appeal in such cases, and sections 1218 and 1219 prescribe the procedure on appeal to the circuit court or court of like jursidiction, and the manner of enforcing the judgment and sentence on appeal, and section-1220 provides for and regulates appeals from judgments of the circuit court or courts of like jurisdiction in such cases to the Appellate or Supreme Court. Section 1221 deals with the next class of jurisdiction, and confers upon the recorder all the jurisdic *665 tion and power of the county court over misdemeanors committed within the police jurisdiction, and section 1222 prescribes the same punishment as provided by law of the state, and the judgment of the recorder in such cases, whether it be of conviction or acquittal, is a bar to a prosecution in the state court. And section 1223 deals with the next class of jurisdiction and provides: “In all cases where persons are brought before the recorder, if on investigation of the charge there is reasonable cause to believe that a felony has been committed and that the defendant is guilty thereof, such officer only has authority to bind such defendant over to appear before the criminal or circuit court or other court of like jurisdiction of the county and to proceed in all respects in such cases as justices of the peace are required by law to proceed.” ■
The facts upon which the charge in this case, if the publication was libelous, and published of another than the publisher, and if such publication tended to provoke a breach of the peace, would not only be a violation of the ordinance, but would also be a violation of section 7338 of the Code, subjecting the offender to fine and imprisonment. Yet if the limitation of 60 days is applicable and the case had proceeded to trial on the merits, the effect of a trial and acquittal of the defendant before the recorder, although acquitted on the ground that the prosecution was barred before the recorder, the judgment in that case, under the provisions of section 1222 of the Code, would be a bar to further prosecution,, although the statute fixing 60 days as a limitation has no application to the circuit courts or courts of like juris diction. —Ex parte Ratley, 188 Ala. 107 , 66 South. 147 ; Hazelton v. State, Infra, 68 South. 715 ; Brown v. State, 105 Ala. 117 , 16 South. 929 .
There is nothing in the case of Carter v. State, 107 Ala. 146 , 18 South. 232 , that militates against this position. *666 In that case the defendant was tried for using abusive language in tbe presence of females, and undertook to plead as former jeopardy tbe fact that a prosecution for tbe same offense had been commenced before a justice of tbe peace, .the pleas asserting that tbe justice bad jurisdiction to finally try tbe case, and upon tbe defendant being brought before tbe justice be waived trial before tbe grand jury, and the justice required tbe defendant to enter into bond to appear at tbe next term of the circuit court to “await action of tbe grand jury.” Tbe prosecuting attorney did not test the sufficiency of this plea, but, treating it as good, filed replications thereto, setting up tbe same facts and tbe further fact that tbe prosecution before tbe justice was commenced 60 days after tbe offense was committed. Tbe undisputed evidence sustained tbe replication, and on this state of tbe evidence tbe court instructed tbe jury that tbe defendant had not been put in former jeopardy. It is apparent from this statement that both tbe replications and tbe pleas presented an immaterial issue and were frivolous for the i*eason that tbe offense for which tbe defendant in that case was on trial was not one within tbe final jurisdiction of tbe justice (Code, § 6733), and tbe only jurisdiction that- tbe justice bad was that of a committing magistrate, and tbe only order be could make in tbe case is tbe one be did make, requiring tbe defendant to enter into bond for bis appearance before a court having jurisdiction of tbe offense; and hence tbe remark of tbe court: “Lest it be thought that some sanction is given by us to tbe alleged defense of former jeopardy, if presented in some other shape than that in which tbe pleadings presented it in this case, we remark that tbe defense attempted was frivolous, and tbe plea, if tbe court bad been moved thereto, ought to have been stricken out as such.”
*667 Furthermore, to apply the limitation of 60 days in such cases would be short of the “full jurisdiction” granted by section 1215, and would operate as a limitation on the powers and jurisdiction of the recorder not placed on courts of co-ordinate jurisdiction.
Municipalities are agencies of the state designed to aid in promotion of the peace and good order of its citizens, and the only limitation on its authority to adopt ordinances to this end is that its ordinances shall not he inconsistent with the laws of the state; and, in the absence of charter provisions prohibiting, inherent power exists in the municipality to regulate its own procedure in the enforcement of its ordinances. — McQuillin on Municipal Ordinances, § 303, pp. 475, 476;. 1 Dill. Mun. Corp. (4th Ed.) § 410. The ordinance of the appellant thus fixing a limitation of 12 months for the commencement of prosecution, when considered in connection with the broad jurisdiction conferred on recorders to enforce, not only the by-laws and ordinances of the municipality, but jurisdiction co-ordinate with the county, circuit, and criminal courts over misdemeanors under the laws of the state, it is unreasonable to say that the Legislature ever intended that section 7348 should apply to and govern prosecutions before the recorder, even in misdemeanor cases, much less for the violation of municipal ordinances. Furthermore, the language of the statute, “and shall have power of an ex officio justice of the peace,” etc., clearly demonstrates that the power here conferred was not a limitation of power as is held in the majority opinion, but an addition or accumulation of power. —State, ex rel. Vandiver v. Burke, 175 Ala. 561 , 57 South. 870 . There is certainly no conflict between the ordinance and section 7347, prescribing a limitation of 12 months for prosecutions in misdemeanor cases before circuit and city courts, and if reasoning by *668 analogy is to be applied, this section, rather than section 7348, should be accepted as the analogy. The terms “jurisdiction,” “power,” and “authority,” found in section 1214, et seq., of the Code, are used in the broad sense of jurisdiction, which is defined as “the power to hear and. determine matters in controversy.”—Pullman Palace Car Co. v. Harrison, 122 Ala. 149 , 25 South. 697 , 82 Am. St. Rep. 68 ; Lamar v. Gunter, 39 Ala. 324 ; 3 Mayf. Dig. 1194, § 1. The conclusion is strengthened by the fact that in all the previous Codes of the state the statutes conferring jurisdiction on the intendant or mayor of towns and cities used indiscriminately the words “power and jurisdiction,” “authority,” and'“power.”—Code 1896, § 2951; Code 1886, § 1501; Code 1876, 1783; Code 1867, § 1503; Code 1852, ;§ 1239.
The question of the public policy of the state, it seems to me, is not involved, but if that is to be considered, in view of the fact that in some cáses- no limitation is prescribed, and in others different times are fixed for the commencement of prosecutions, the conclusion is irresistible that the “public policy” of the state is that in cases where no limitation is placed upon prosecutions by statute, there shall be no limitation. This is in line with the common-law doctrine, prevailing in this state.—Wood on Limitations, § 28; State v. Cawood, 2 Stew. 360 ; Burt v. State, 39 Ala. 617 ; Barlow v. Lambert, 28 Ala. 704 , 65 Am. Dec. 374 ; Peet v. Hatcher, 112 Ala. 514 , 21 South. 711 , 57 Am. St. Rep. 45 ; 2 Mayf. Dig. 653. It is also in accord with the holdings of the Supreme Court of this state and the Georgia court referred to in the majority opinion. —State, ex rel. Washington v. Hunter, 67 Ala. 81 ; Battle v. Marietta, 118 Ga. 242 , 44 S. E. 994 ; Bell v. Forsyth, 126 Ga. 443 , 55 S. E. 230 ; Norris v. Thompson (Ga. App.) 83 S. E. 866 ; Ramsey v. Atlanta (Ga. App.) 148.
*669 Holding these views, I entertain the opinion that the judgment appealed from should he reversed, and the ■cause remanded for further proceedings.