This is an appeal by the city of Birmingham from an order or judgment overruling and denying its motion to set aside the verdict of the jury in appellee's favor, and the judgment of acquittal rendered thereon, in a prosecution begun by it against appellee in the recorder's court of said city for a violation of one of the city's penal ordinances, which prosecution, after resulting in a conviction of appellee in the recorder's court, was carried by her by appeal to the circuit court.
Apprehending, as we thought, after an examination of the record, that an affirmance by us of the judgment appealed from might be construed by some as an act giving verity to the remarks of the learned trial judge to the effect that so much of the act of the Legislature of Alabama approved August 20, 1915 (Gen. Acts Ala. 1915, p. 304), as is quoted in the next hereinafter included document was unconstitutional and void, we filed with the Supreme Court the said document, to wit:
"June 5, 1934.
"To the Honorable Supreme Court of Alabama,
"Sirs: It seems to us that the violation of the terms of a penal city ordinance is an 'offense' within the meaning of section 9 of the Constitution of 1901. 16 C.J. 282. And that a *Page 202 trial therefor before a competent tribunal constitutes 'jeopardy of * * * limb.'
"And that to allow the city to appeal from a judgment of acquittal rendered on such trial would be, in effect, to allow the defendant so acquitted to, `for the same offense, be twice put in jeopardy etc.' in direct violation of the said section 9 of the Constitution of 1901.
"It is therefore our opinion that so much of section 30 of the Act of the Legislature of Alabama approved August 20, 1915 (Gen. Acts Ala. 1915, p. 304) as provides as follows, towit:
" 'From the judgment of any court to which appeal shall be taken, or which heretofore has been taken from any recorder's court in any such city, the city * * * in any case may appeal to the Court of Appeals of the State of Alabama' is unconstitutional and void.
"We have a case pending in our court, towit, City of Birmingham v. Arlean Williams, 6th Div. 597, in which the holding by the circuit judge was in line with the views we have hereinabove expressed. If such views are correct his judgment should be affirmed by as; but this action would result in declaring the part of the Statute quoted above to be unconstitutional and void.
"Under the provisions of Code 1923, § 7322, we submit to you, for your decision, the question of whether or not the quoted excerpt from section 30 of the Act of the Legislature of Alabama approved August 20, 1915 is in violation of theConstitution of Alabama, as indicated, or otherwise.
"Very respectfully,
"C. R. Bricken, "Presiding Judge. "James Rice, "Judge."
Following is the response received by us:
"To the Honorable Court of Appeals of Alabama.
"Responding to the above request, we respectfully submit the following as the opinion of this court: