Objection to the sufficiency of a complaint for violation of an ordinance cannot be made for the first time in the circuit court on appeal.

Harmless Error Validity of Count Not Considered Below.

Where an affidavit filed in recorder's court for violation of an ordinance was treated on appeal to the criminal court as importing the. charge tried, and under it guilt was determined, whether the other count of the affidavit, or the statement filed in the criminal court, both attempting to charge a like offense, were sufficient or not, is immaterial on a further appeal.

Presumption on Appeal -Verdict on Proven Acts.

It will not be assumed that the verdict was rested on any act of which there was no evidence.

Making Facts Prima Facie Evidence.

An ordinance providing that certain circumstances, when established by evidence, should raise a prima facie presumption of guilt, which promulgates the same rule as the Fuller Bill (Acts Sp. Sess. 1909, p. 63), infracts no constitutional provision.

[See note at end of this case.] Appeal Persons Entitled to Allege Error Irresponsive Answer by Wit

ness.

Motion to exclude an answer merely because not responsive can only be availed of by the interrogator.

Intoxicating Liquors

Other Offenses.

Evidence

Where the issue on a prosecution for violation of a municipal ordinance was whether defendant kept at his storehouse prohibited liquors with intent to sell same contrary to law, a question to a witness, whether he bought liquor at that location recently before the offense alleged and after the passage of the ordinance, is an evidential, fact, bearing on defendant's guilt.

Appeal from Jefferson Criminal Court: GREENE, Judge.

Prosecution for violation of municipal ordinance. R. A. Borok convicted and appeals. Transferred from Court of Appeals, The facts are stated in the opinion, AFFIRMED,

Samuel B. Stern for appellant. Joseph P. Mudd for appellee.

[76] MCCLELLAN, J.—(1–3.) .... On appeal to the criminal court, the defendant (appellant) was adjudged guilty of the violation of an ordinance of the city of Birmingham. No objection to the sufficiency of the complaint on which defendant was found guilty by the recorder having been made in the recorder's court, objection could not be made thereto in the criminal court on appeal.-Birmingham v. O'Hearn, 149 Ala. 307, 42 So, 836, 13 Ann. Cas. 1131; Aderhold v. Anniston, 99 Ala. 521, 12 So. 472; McKinstry v. Tuscaloosa, 172 Ala. 344, 54 So. 629. The affidavit filed in the recorder's court contained in its first "count" every element with respect to probable cause that could be exacted in a criminal prosecution; and that "count" was treated on the trial in the criminal court of Jefferson county, after appeal, as importing the charge there tried; and under it guilt was determined as of an offense against the municipal ordinance. So, whether the other "count" in the affidavit, or the statement filed in the criminal court-both directed to the purpose of charging a like offense to that set forth in the first "count" in the affidavit-were sufficient or not, is entirely immaterial on this appeal. There was no averment in the mentioned first "count" asserting the manufac

ture of forbidden liquors by the defendant, and there was no evidence tending in any degree to show [77] that defendant manufactured forbidden liquors; whereas, there was evidence supporting the allegation of infraction of the ordinance by the forbidden traffic in intoxicants. . It cannot be assumed that the jury's verdiet was rested upon any act of which there was not the slightest intimation or evidence, namely, the manufacture of forbidden liquors, which was not condemned or inhibited in the ordinance 58-C, but which was alleged in the statement filed in the criminal court.

(4) It has been determined here that the Smith and Parks Bills (Gen. Acts 1911, pp. 249-288, 26-31), treating the manufacture, sale, etc., of intoxicants, did not operate the repeal of the Fuller and Carmichael Bills (Acts Sp. Sess. 1909, pp. 8, 63), except in the particulars the former laws are inconsistent with the latter laws.-Western Ry. v. Capitol Brewing, etc. Co. 177 Ala. 149, 153, 59 So. 52; Allen v. State, 181 Ala. 383, 61 So. 912, 913. There being no provision in the Smith and Parks Bills defining what are unlawful drinking places, the provisions of section 5 of the act approved August 9, 1909 (Acts Sp. Sess. 1909, p. 10-11), defining unlawful drinking places were not repealed by the Smith and Parks Bills, except in so far as regularly issued licenses to maintain drinking places afford the legal right to maintain such places. Unless legally licensed under existing laws, every place defined in said section 5 as an unlawful drinking place is such and is subject to the provisions in that respect of the laws enacted at the Special Session of the Legislature held in 1909.

(5) By section 1251 of the Political Code (codifying what is known as the Municipal Code), the amplest authority was conferred on municipal governing bodies to enact ordinanees to the ends therein defined. That section is as follows: "Municipal corporations [78] shall have power from time to time to adopt ordinances and resolutions not inconsistent with the laws of the state, to carry into effect or discharge the powers and duties conferred by this chapter, and to provide for the safety, preserve the health, promote the prosperity, improve the morals, order, comfort, and convenience of the inhabitants of the municipality, and to enforce obedience to such ordinances by fine not exceeding one hundred dollars and by imprisonment or hard labor not exceeding six months, one or both.".

There is nothing in ordinance No. 58-C which appears to be in conflict with any state law on the subject. It is no objection to municipal ordinances, in which no contravention of a state enactment is undertaken or is effected, that they afford additional regulations complementary to the end state legis

lation would effect.-Turner v. Lineville, 2 Ala. App. 454, 56 So. 603, 605.

(6) Section 8 of the ordinance provided that certain circumstances, when established by the evidence, should raise a prima facie presumption of guilt of defined unlawful acts. This section was admitted in evidence over defendant's objection. The substance of this section (8) of the ordinance infracts no constitutional provision.-Ex p. Woodward, 181 Ala. 97, 61 So. 295. Section 4 of the Fuller Bill (Acts Sp. Sess. 1909, p. 64), considered in Ex p. Woodward, supra, provides a rule of evidence of general application in state and municipal prosecutions for violation of laws pertaining to, the liquor traffic. That rule of evidence was applicable to the appellant's prosecution and effected to make out the prima facie case under features of section 1 of Ordinance No. 58-C. Hence no prejudice could have resulted to the appellant in the admission of section 8 of the mentioned ordinance which but reiterated the [79] substance of the pertinent rule of evidence provided in section 4 of the state statute.

'(7) One of the issues on trial was whether defendant kept at his storehouse, in the city of Birmingham, prohibited liquors with the intent to sell the same contrary to law. The witness Flagg was asked whether or not he had bought any liquor from defendant on Fifteenth street near Avenue E in January, 1913. The question was not objectionable. The time referred to in the question was long after the ordinance had become effective. tion to exclude an answer merely because not responsive can only be availed of by the interrogator.-Pope v. State, 174 Ala. 63, 76, 57 So. 245. Whether defendant had sold liquors at that location, so recently before the particular occasion under investigation, contrary to law, was an evidential circumstance bearing on one of the issues of guilt vel non as stated before.

Mo

The sentence imposed upon the defendant was within the penalty prescribed by section 1 of Ordinance No. 58-C.

There is no prejudicial error in the record. The judgment must be affirmed. Affirmed.

Anderson, C. J., and Mayfield and Gardner, JJ., concur.

NOTE.

Validity of Ordinance Providing that Certain State of Facts Shall Constitute Prima Facie Evidence of Violation Thereof.

"

In the few cases involving the validity of an ordinance declaring the proof of a certain

state of facts to be prima facie evidence of a violation thereof, the courts have followed the rules governing statutes containing simi lar provisions and have held the ordinance to be valid, as merely prescribing a rule of evidence. Com. v. Price, 123 Ky. 163, 13 Ann. Cas. 489, 94 S. W. 32; Piqua v. Zimmerlin, 35 Ohio St. 507. See also Paducah v. Ragsdale, 122 Ky. 425, 92 S. W. 13; State v. Vass, 49 La. Ann. 444, 21 So. 596, 62 Am. St. Rep. 653. And see the reported case. In Com. v. Price, supra, it was said of the power of a municipality to pass such an ordinance: "The city council has a large discretion in the enactment of ordinances and an ordinance enacted under the police power will not be declared void unless it is clearly oppressive or unreasonable. It was competent for the legislative body in making the law to provide what should be a prima facie case, and to place upon the defendant, in case a violation of the law was shown, the burden of showing that the case fell within one of the exceptions named in the ordinance. The ordinance makes it an offense for the saloon keeper to suffer an infant or female to drink in his saloon, or to be or remain there over five minutes, and when these facts are shown the prosecution has made out its case, and the burden then shifts to the defendant to show that the case falls within one of the exceptions named in the ordinance." In Rowland v. Greencastle, 157 Ind. 591, 62 N. E. 474, an ordinance prescribing the business section of a city and prohibiting the conduct of the liquor business in any other portion was held to render prima facie unlawful shops kept for the sale of liquor outside the business section as defined. This, the court held the city had power to do. But it was held in In re Wong Hane, 108 Cal, 680, 41 Pac. 493, 49 Am. St. Rep. 138, that an ordinance providing that it should, be, unlawful to have in one's possession any lottery ticket unless it was shown that such possession was innocent or for a lawful purpose, was invalid because it overthrew the presumption of inno

The plaintifl" is a foreigner of bad character. I do not think it is particularly creditable for the appellants to allege as one of the grounds for trying to escape liability that the respondent is a foreigner, and, as to the fact that she is of bad character, it appears on the face of the policy, issued under the corporate seal of the company and the signature of its president, that the premises were kept by the insured as a disorderly house.

The law, I think, is stated in Phillips on Insurance (5 ed.) in chapter III. section 2, on the legality of the insurable interest. We read sub-section 210:

"Insurance upon a subject is void if the interest insured is illegal or if the contract contemplates an unlawful use of it;" and this is carried further in sub-section 211, "though there is no express prohibition in respect to a subject, still if insurance upon it is contrary to the spirit and general principles, or what is called 'the policy' of the law, the owner cannot make a valid insurance upon it."

Again, sub-section 231, after referring to cases partly legal and partly illegal where 'a valid insurance may be made for the legal part, continues:

"In the preceding cases no illegality appeared on the face of the contract of insurance. Where 'such does appear, the whole contract is void, as in the case of an agreement to employ a ship in an illegal trade."

[297] In Pearce v. Brooks L. R. 1 Exch. (Eng.) 213, at page 218, Chief Baron Pollock said: :

"No distinction can be made between an illegal and an immoral purpose; the rule which is applicable to the matter is, ex turpi causâ non oritur actio, and whether it is an immoral or an illegal purpose in which the plaintiff has participated it comes equally within the terms of that maxim and the effect is the same; no cause of action can arise out of either the one or the other.".

In the notes to the case of Collins v. Blántern (1 Smith Lead. Cas. [12 ed.] 412), in Smith's Leading Cases (ed: 1915) it is said:

"Contracts made for immoral purposes are simply void....The illegality is equally fatal when created by statute."

Many cases are cited in support of this latter proposition. By section 228 of the Criminal Code the keeping of a disorderly house is an indictable offence and the purpose for which this house is used, being expressly stated in the policy, there can be no doubt of the illegality of the purpose for which it was used.

In Scott v. Brown (1892) 2 Q. B. (Eng.) 724, at page 728, Lindley L. J. said:

"Ex turpi causâ non oritur actio. This old and well known legal maxim is founded in good sense and expresses a clear and wellrecognized legal principle which is not confined to indictable offences, No court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal. . . If the evidence adduced by the plaintiff proves the illegality the court ought not to assist him."

In his judgment in the case in this court of Clark v. Hagar, 22 Can. Sup. Cas. 510, Mr. Justice Gwynne refers to a number of cases as establishing that the true test whether a demand connected with an illegal transaction is capable of being enforced at law, is whether the plaintiff requires any aid from the illegal transaction to establish [298] his case. In the present action the plaintiff, now respondent, could not, of course, succeed without proving the policy bearing on its face evidence of illegality. Such proof is offensive to the court and cannot be received.

That we find in the English reports no case exactly in point is not, I think, a mat ter of surprise. English insurance companies, it is well known, rarely dispute their liabilities, never except in gross cases. Further, I should think it probable that respectable companies would be unwilling to state in their policies an immoral purpose. Few people, one may suppose, are willing to advertise their own turpitude unnecessarily.

There is a case in the Circuit Court of Quebec of Bruneau v. Laliberté, 19 Quebec Super. Ct. 425, in which Mr. Justice Andrews held that "insurance upon the furniture in a house of ill-fame is an illegal and immoral contract and will not be enforced by the courts.” "I do not think it is necessary for me to dissent from anything said in the judgment above referred to of Clark v. Hagar, 22 Can. Sup: Ct. 510. It is relied on in the decision of Morin v. Anglo-American F. Ins. Co. 3 Alberta 121, 13 West. L. Rep. 667, in the court of appeal for the Province of Alberta, which the decision now under appeal professes to follow, and also in the later case of Trites Wood Co. v. Western Assur. Co. 15 British Columbia 405, 15 West. L. Rep. 475, in the Court of Appeal for British Columbia. It is, however, unnecessary to examine this judgment particularly, as I am unable to find in it anything to support the decisions in these cases in which, as in the present case, the [299] illegality appears upon the face of the contract sued upon.

For the French law on the subject, see Planiol (6 ed.) vol 2, para. 1009 et seq. and cases there cited. The modern tendency of

the Cour de Cassation would appear to be, however, to maintain the validity of contracts such as the one here in question on the ground that the reciprocal obligations which the parties assume relate exclusively to the payment by the insured of the agreed premium and to the payment by the company of the stipulated indemnity in the event of the destruction of the thing insured. Vide' Sirey, 1904, 1, page 509; but see S. V. 1896, 1, 289; Appert's note; S. V. 1913, 1, 497, note, and S. & P. 1909, 1, 188.

There is no provision in the Code Penal which corresponds with section 228 of the Canadian Criminal Code.

The appeal will be allowed and " judgment entered for the defendants, the present appellants, but without costs.

DAVIES, J.-I think this appeal should be allowed upon the grounds submitted by Mr. Cassels.

In the first place, I think Carr was the agent of Nakata for the purpose of procuring the policy of insurance in question.

The insured was the keeper of a "sporting house" which Mr. Jones, for the respondent, candidly admitted was well understood to be a bawdy house or house of ill-fame.

The husband of the plaintiff applied to Carr, an insurance broker, to obtain the insurance and was told by him that he could not take it in the insurance [300] company for which he was agent, but would apply to other companies and was instructed to do so. He applied to the general agent in the province of the appellant company, who agreed to take it. The applicant paid to Carr a part of the insurance premium and shortly afterwards returned to Carr to obtain the policy when he was told it was subject to cancellation at any time. He then paid Carr the balance of the premium and Carr handed over to him the policy.

Carr says that at that time he asked them whether in case of cancellation he would return the money or put the insurance in some other company-and he was told to put it in some other company!

The same afternoon Carr received notice that the head-office had cancelled the policy, whereupon he wrote and sent by registered post a letter to the plaintiff telling her the policy was cancelled. Carr had received the premium from the applicant, and on receiving notice of the cancellation of the policy made, as instructed, efforts to obtain insurance elsewhere, but was unsuccessful and the premium remained in his hands.

The trial judge was of the opinion that the whole thing depended upon the question of the agency of Carr for the insured upon which there is much to be said upon both sides.

The learned judge was not satisfied that Carr was an agent to receive notice of cancellation and this view prevailed in the court of appeal.

I am of opinion, however, that Carr was such an agent and that the premium having been left with him in case of cancellation to obtain insurance in some other company, that he was the agent of the insured for receiving notice of such cancellation.

[301] On the other ground also, that the contract was one for facilitating the carrying on of an illegal and immoral object, I think the appeal should be allowed. The trial judge and the court of appeal felt themselves concluded by the case of Morin' v. Anglo-American F. Ins. Cò. 3 Alberta L. Rep. 121, 13 West. L. Rep. 667. I am not able to accept that authority or the reasoning upon which it was founded. I think the principle upon which the case of Pearce v. Brooks, L. R. 1 Exch. (Eng.) 213, was decided the proper one to apply in this case.

That principle is that one who makes a contract for sale or hire with the knowledge that the other party intended to apply the subject-matter of the contract to an immoral purpose cannot recover on the contract. As Pollack C. B. said in that case if an article was required and furnished "to facilitate the carrying on of the immoral purpose" that is sufficient. The courts' would not lend their aid to carry it out. It seems to be that the facts of the case now before us are stronger against the enforcement of the contract than those in the case of Pearce v. Brooks, L. R. 1 Exch. (Eng.) 213, which the Exchequer Court refused their aid to enforce. In that case, the plaintiffs sued for the hire of a brougham by a woman known by them to be a prostitute and who used the brougham to their knowl. edge for the purpose of making a display favourable to her immoral purposes.

In the case of Johnson v. Union Marine, etc. Ins. Co. 127 Mass. 555, the court followed a previous decision of their own in Kelly v. Home Ins. Co. 97 Mass. 288, and held that if a person engaged in the unlawful business [302] of selling intoxicating liquors without a licence at the time of the making and ac. ceptance of a policy of insurance on his stock in trade and a month afterwards, the policy does not attach, although he made application for a licence immediately after he began such business.

་་

The grounds on which the decision was placed in Kelly v. Home Ins. Co. 97 Mass. 288, above referred to were that the object of the assured in obtaining the policy was to to make their illegal business safe and profitable and that the direct and immediate purpose of the contract of insurance being to protect and encourage an unlawful traffic the contract was illegal and never attached.

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