THOMAS, J.
The sole question in this case is: Within what time is a prosecution for a. violation of a city ordinance barred?
Our Municipal Code (Political Code of Alabama, §§ 1046 to 1460, inclusive), which is now the charter of the towns and cities of the state, is silent upon the question of limitations for such prosecutions.
The Supreme Court of Georgia, acting upon the common-law principle embodied in the maxim, “Nullus tern-pus occurrit regem,” have held that, where the municipal charter fails to provide a limitation, no lapse of time after the commission of an offense in violation of a city will bar ’a prosecution therefor, unless the ordinance itself, or other ordinances of the city, prescribe some limitation.—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.) 83 S. E. 148. In other words, the holding is that, in the absence of charter limitations, the municipality may fix such limitations as it may choose — 1 year, 10 years, 20 years, or any other period — or none at all, and that whatever the municipality does in this particular will govern the matter.
(1) We can conceive of the correctness of this doctrine when applied to a condition different from that here obtaining — that is, when applied in a state or nation [656]*656whose public policy is against limitations — for instance, when applied at common law before the origin of statutes of -limitations, at a time when the policy of the mother country was to let no time bar prosecutions for public offenses — when “no time ran against the king,” who was the state. Then it might well be said, we think, that no time should run against the municipalities, which were but the instrumentalities of the king — the state— in the administration of government. But, here, in a state whose positively declared public policy is and ever lias been to fix a limitation upon all prosecutions for offenses in violation of its criminal statutes, except offenses of the gravest nature (those punishable capitally and arson, forgery, counterfeiting, second degree murder, and first degree manslaughter — Code, §§ 7344-7351), it seems to us, although we have great respect for the opinion of the Supreme Court of Georgia, that for us to follow that court and thereby to lay down a doctrine which would countenance no limitations whatever upon prosecutions for a violation of the penal ordinances of a municipality — mere minor infractions and against only the laws of the mere creature of the state, who, in making such laws, exercised only a limited portion of the sovereignty of the state, and that alone by the authority, of the state — would be to say that the state, by its silence as to limitation, intended to confer, and did confer, upon its creature, the municipality, the authority to establish a public policy within its borders as to a violation of its penal ordinances wholly at variance with that existing by force of positive law as the settled public policy of the state with respect to a violation of its own criminal statutes.
This state, in its wisdom, has seen fit to declare, through its Legislature, that, as to minor offenses against its laws, the peace, respose, and good order of society can the better be subserved and conserved by .fixing a [657]*657limitation to prosecutions therefor. Is it to be supposed, then, that the state, through its Legislature, by its silence on the subject of limitations as to prosecutions for violations of municipal ordinances, intended to permit a different policy as to them, and to leave it to the municipality to determine whether, in this particular, it will follow the policy of the state or adopt an entirely different policy, one of no limitation at all or one of a different limitation from that of the state? Our state Constitution (Const. 1901, § 89) provides: “The Legislature shall not have power to authorize any municipal corporation to pass any laws inconsistent with the laws of this state.”
Keeping within the spirit and letter of this provision, the Legislature, in granting a general charter to the municipalities of this state (Pul. Code, §§ 1046-1460), under which appellant city is operating, has provided therein as follpws: “Municipal corporations shall have power from time to time to adopt ordinances and resolutions not inconsistent with the laws of this 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.” — Political Code, § 1251.
Under these provisions, if not also upon common-law principles, the ordinances of a municipality, in order to be valid, must be not only not inconsistent with the laws of the state, but also not inconsistent with the public policy of the state.—Georgia Fruit Exchange v. Turnipseed, 9 Ala. App. 128, 62 South. 542; Hewlett v. Camp, 115 Ala. 499, 22 South. 137; 21 Am. & Eng. Ency. Law (2d Ed.) 980, § 7, and cases cited in notes 7 and 8.
Consequently it is our opinion that where the municipal charter fixes no limitation upon prosecutions - for [658]*658violations of city ordinances, the public policy of the state, as expressed in the general statutes of the state fixing limitations upon prosecutions for misdemeanors which are crimes against state laws, that are punishable by fine and by. jail and hard-labor sentences for the county, and which are consequently analogous to offenses against municipal ordinances, that are also punishable by fine and by jail and hard-labor sentences, though for the city, must and does obtain so far as applicable as to violations of city ordinances, and that any city ordinance prescribing a different limitation, or no limitation at all, is void as against the public policy of the state.
The public policy of the state on the subject of limitation of prosecutions for misdemeanors is expressed in two general statutes; one (Code, § 7347) providing that prosecutions in the circuit, city, or county court for misdemeanors must be commenced within 12 months next after the commission of the offense, and the other (Code, § 7348) providing that prosecutions before a justice of the peace for misdemeanors within his jurisdiction must be commenced within 60 days next after the commission of the offense. One or the other of these limitations — either the 12-month or the 60-day limitation — must (there being no limitation fixed in the municipal charter) obtain as to prosecutions for violation of city ordinances, not as a statute, but as a matter of public policy, in order that the policy of repose existing in the state as to prosecutions may prevail in the municipality, as otherwise and without one or the other of the restrictions mentioned there is no restriction whatever on the city, and it could adopt a policy entirely at variance with that of the state, a policy of no limitation at all or of a different limitation.
Of course, we are not to be understood as deciding a question not before us, and that is that the state could [659]
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THOMAS, J.
The sole question in this case is: Within what time is a prosecution for a. violation of a city ordinance barred?
Our Municipal Code (Political Code of Alabama, §§ 1046 to 1460, inclusive), which is now the charter of the towns and cities of the state, is silent upon the question of limitations for such prosecutions.
The Supreme Court of Georgia, acting upon the common-law principle embodied in the maxim, “Nullus tern-pus occurrit regem,” have held that, where the municipal charter fails to provide a limitation, no lapse of time after the commission of an offense in violation of a city will bar ’a prosecution therefor, unless the ordinance itself, or other ordinances of the city, prescribe some limitation.—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.) 83 S. E. 148. In other words, the holding is that, in the absence of charter limitations, the municipality may fix such limitations as it may choose — 1 year, 10 years, 20 years, or any other period — or none at all, and that whatever the municipality does in this particular will govern the matter.
(1) We can conceive of the correctness of this doctrine when applied to a condition different from that here obtaining — that is, when applied in a state or nation [656]*656whose public policy is against limitations — for instance, when applied at common law before the origin of statutes of -limitations, at a time when the policy of the mother country was to let no time bar prosecutions for public offenses — when “no time ran against the king,” who was the state. Then it might well be said, we think, that no time should run against the municipalities, which were but the instrumentalities of the king — the state— in the administration of government. But, here, in a state whose positively declared public policy is and ever lias been to fix a limitation upon all prosecutions for offenses in violation of its criminal statutes, except offenses of the gravest nature (those punishable capitally and arson, forgery, counterfeiting, second degree murder, and first degree manslaughter — Code, §§ 7344-7351), it seems to us, although we have great respect for the opinion of the Supreme Court of Georgia, that for us to follow that court and thereby to lay down a doctrine which would countenance no limitations whatever upon prosecutions for a violation of the penal ordinances of a municipality — mere minor infractions and against only the laws of the mere creature of the state, who, in making such laws, exercised only a limited portion of the sovereignty of the state, and that alone by the authority, of the state — would be to say that the state, by its silence as to limitation, intended to confer, and did confer, upon its creature, the municipality, the authority to establish a public policy within its borders as to a violation of its penal ordinances wholly at variance with that existing by force of positive law as the settled public policy of the state with respect to a violation of its own criminal statutes.
This state, in its wisdom, has seen fit to declare, through its Legislature, that, as to minor offenses against its laws, the peace, respose, and good order of society can the better be subserved and conserved by .fixing a [657]*657limitation to prosecutions therefor. Is it to be supposed, then, that the state, through its Legislature, by its silence on the subject of limitations as to prosecutions for violations of municipal ordinances, intended to permit a different policy as to them, and to leave it to the municipality to determine whether, in this particular, it will follow the policy of the state or adopt an entirely different policy, one of no limitation at all or one of a different limitation from that of the state? Our state Constitution (Const. 1901, § 89) provides: “The Legislature shall not have power to authorize any municipal corporation to pass any laws inconsistent with the laws of this state.”
Keeping within the spirit and letter of this provision, the Legislature, in granting a general charter to the municipalities of this state (Pul. Code, §§ 1046-1460), under which appellant city is operating, has provided therein as follpws: “Municipal corporations shall have power from time to time to adopt ordinances and resolutions not inconsistent with the laws of this 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.” — Political Code, § 1251.
Under these provisions, if not also upon common-law principles, the ordinances of a municipality, in order to be valid, must be not only not inconsistent with the laws of the state, but also not inconsistent with the public policy of the state.—Georgia Fruit Exchange v. Turnipseed, 9 Ala. App. 128, 62 South. 542; Hewlett v. Camp, 115 Ala. 499, 22 South. 137; 21 Am. & Eng. Ency. Law (2d Ed.) 980, § 7, and cases cited in notes 7 and 8.
Consequently it is our opinion that where the municipal charter fixes no limitation upon prosecutions - for [658]*658violations of city ordinances, the public policy of the state, as expressed in the general statutes of the state fixing limitations upon prosecutions for misdemeanors which are crimes against state laws, that are punishable by fine and by. jail and hard-labor sentences for the county, and which are consequently analogous to offenses against municipal ordinances, that are also punishable by fine and by jail and hard-labor sentences, though for the city, must and does obtain so far as applicable as to violations of city ordinances, and that any city ordinance prescribing a different limitation, or no limitation at all, is void as against the public policy of the state.
The public policy of the state on the subject of limitation of prosecutions for misdemeanors is expressed in two general statutes; one (Code, § 7347) providing that prosecutions in the circuit, city, or county court for misdemeanors must be commenced within 12 months next after the commission of the offense, and the other (Code, § 7348) providing that prosecutions before a justice of the peace for misdemeanors within his jurisdiction must be commenced within 60 days next after the commission of the offense. One or the other of these limitations — either the 12-month or the 60-day limitation — must (there being no limitation fixed in the municipal charter) obtain as to prosecutions for violation of city ordinances, not as a statute, but as a matter of public policy, in order that the policy of repose existing in the state as to prosecutions may prevail in the municipality, as otherwise and without one or the other of the restrictions mentioned there is no restriction whatever on the city, and it could adopt a policy entirely at variance with that of the state, a policy of no limitation at all or of a different limitation.
Of course, we are not to be understood as deciding a question not before us, and that is that the state could [659]*659not, by statute, prescribe a different limitation for prosecutions for a violation of municipal ordinances from the limitation it has prescribed for prosecutions of misdemeanors, but merely as holding that when the state law is silent on the subject of the limitation of prosecutions for violations of municipal ordinances, the public policy of the state, as declared in its general statutes fixing-limitations as to prosecutions for misdemeanors, must prevail as to prosecutions for violations of municipal ordinances.
(2) If, then, one or the other of the limitations mention eel as fixed by statute for the prosecution of misdemeanors must, as a matter of public policy, operate as to prosecutions for the violation of municipal ordinances, which shall it be — the 12-month limitation, which is the limitation existing as to such prosecutions when commenced in the circuit, city, or county court, or the 60-day limitation, which is the limitation existing when such prosecutions are commenced in a justice of the peace court? We think the statutes of the state, which establish a recorder’s court and which define and declare the powers, duties, and jurisdiction of a recorder, before whom only can a prosecution for a violation of a municipal ordinance be commenced, answer this question and show impliedly that it was the legislative purpose, in declaring, as the Legislature did in such statutes, that the recorder, “in criminal and quasi criminal matters,” which includes'trials for the violation of municipal ordinances, should “have the power of an ex officio justice of the peace” to limit prosectitions before a recorder for a violation of municipal ordinances to 60 days, the limit fixed by statute, as seen, for prosecutions before a justice of misdemeanors within his jurisdiction. Section 1215 of the Political Code thus declares: “It shall be the duty of the recorder * " * to hear and determine all cases for the breach of the ordinances and by[660]*660laws of the city that may be brought before him. * * * Such recorder is especially rested with and may exercise in the city, and within the police jurisdiction thereof, full jurisdiction in criminal and quasi criminal matters, and may impose the penalties prescribed by ordinance for the violation of ordinances and by-laws of the city, and shall have power of an ex officio justice of the peace, except in civil matters.”
The power of an ex officio justice of the peace is, of course, the same as the power of a justice of the peace (Const. 1901, § 168; Williams v. Woolf, 37 Ala. 298; Tyson v. Chestnut, 118 Ala. 387, 24 South. 73), and therefore, when.it is said that the recorder shall have the power of an ex officio justice of the peace, it means that he shall have the power of a justice of the peace, no more and no less, except in such particulars as' such power may be enlarged or limited, in the case of the recorder, by other provisions of the said statute so defining the powers of a recorder. There are other such provisions which do enlarge the recorder’s power beyond that of a justice of the peace — -for instance, a recorder has the power to sentence to hard labor for non-payment of costs a person convicted before him of a violation of a city ordinance (Code, § 1216), while a justice of the peace has no power to sentence for non-payment of costs a person convicted before him of a misdemeanor (Code, § 6734) — but none of these provisions have reference to the power now under consideration, the power to try an offender after the lapse of 60 days for an offense of which the officer has final jurisdiction. If a justice of the peace has not the power, then a recorder,' whose power in this particular is the same as that of a justice of the peace, has not such power.
It is true that section 1221 of the Code enlarges the jurisdiction of a recorder beyond that of a justice of the peace by giving him concurrent jurisdiction with county [661]*661courts of all misdemeanors committed within the town or city or police jurisdiction thereof — the final jurisdiction of the county court as tó misdemeanors exceeding that of a justice of the peace (Code, §§ 6700, 6783) — yet jurisdiction and power are recognized in our Constitution and statutes as different things, and therefore, though the recorder has by express statute (Code, sections last cited) jurisdiction exceeding that of a justice of the peace, his power, by express statute (Code, § 1215), is limited to that of a justice of the peace, except in so far as it has been enlarged by other statutes, which have not done so, as pointed out, in particulars here important. Justices of the peace have, concurrently with county courts, jurisdiction of violations of the Sunday law, vagrancy, assaults, assaults and batteries, etc. (Code, § 6733), but justices of the peace have no power to exercise that jurisdiction, unless the prosecution is commenced within 60 days after the commission of the offense (Code, § 7348), while county courts have the power to exercise thát jurisdiction if the prosecution is commenced within 12 months after the commission of the offense (Code, §§ 7347, 6700). Our Constitution (section 168) provides that: “The Governor may appoint not more than one notary public with all of the powers and jurisdiction of a justice of the peace for .each precinct,” etc.
It is thus clear that in the contemplation of our Constitution and statutes there is a difference between the terms “power” and “jurisdiction.” Consequently we hold that a prosecution for a violation of a municipal ordinance, which can only be commenced before a recorder, whose “powers,” as stated in the statute creating the office, are those of a justice of the peace, must be commenced within 60 days after the commission of the offense, since a justice of the peace has no power to entertain a prosecution, though as to a matter of which he [662]*662has final jurisdiction, after the lapse of 60 days from the commission of the offense.
It follows that the lower court did not err in discharging defendant, it appearing, without dispute, that the offense was committed more than 60 days before the commencement of the' prosecution, and did not err in declaring void the city ordinance prescribing a limitation of 12 months.
(3) An action of debt for the recovery of the penalty fixed for a violation of the ordinance might be brought by the city after the expiration of 60 days, but not a criminal prosecution for the enforcement of the ordinance.
Affirmed.