The opinion heretofore promulgated by the writer has now been superseded by one by my brethern, granting appellant's application for rehearing and reversing the judgment of conviction on the sole ground, as I read it, that the ordinance No. 6 of the town of Coffee Springs, therein referred to, was improperly admitted in evidence because, in the words of the writer of the majority opinion: "The penalty fixed for a violation of the ordinance is void in that such penalty is in excess of the authority granted by section 1992 of the Code of 1923, and is therefore inconsistent with the statute." That is all. The adoption, publication, promulgation, of said ordinance, I take it, are approved by my brethren. *Page 356
Not to mention the fact that nowhere, in any manner, is the invalidity of the said ordinance on the ground mentioned in the majority opinion argued here in the briefs filed on behalf of appellant, it seems to me that he, being assessed a fine of $50 — within the statutory limits referred to — is not in position to complain.
For, as said in 43 C. J., p. 552: "The possible invalidity of penalties prescribed by a municipal ordinance for violation of its provisions does not defeat other provisions where the penalties are separable from the rest of the ordinance." And "this principle has been held applicable to ordinances which fix a fine * * * in excess of that permissible under * * * Statute, it being held that the penalty or punishment may be enforced to the extent to which it is permissible under * * * Statute." Id.
The Supreme Court of our state, it appears to me, inclines to the view quoted. See Sloss-Sheffield S. I. Co. v. Smith,175 Ala. 260, 57 So. 29.
I therefore respectfully dissent.