Bouyer v. City of Bessemer

Bouyer v. City of Bessemer.

Bouyer v. City of Bessemer, 88 So. 192 (Ala. Ct. App. 1921)

Court: Alabama Court of Appeals · State Appellate Courts
Decided: January 11, 1921
Docket: No. 6 Div. 718.
Judges: Merritt
Citations: 88 So. 19217 Ala. App. 6651921 Ala. App. LEXIS 18
Disposition: Reversed and remanded. v

Headnotes

1. Municipal Corporations 122(2) — Ordinance SHOWN TO HAVE BEEN PUBLISHED by Authority of Council Presumed to Continue in Effect. Under Code 1907, §§ 1259, 3989, an ordinance, contained in a printed code of ordinances purporting to have been published by authority of the council, which showed that the ordinance had previously become effective, is presumed to continue in effect. t TTor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Summary

Appeal.from Circuit Court, Jefferson County; J. C. B. Gwin, Judge. Pleas Bouyer was convicted in the recorder’s court of the City of Bessemer of violating a city ordinance, and appealed to the circuit, and from a judgment of conviction there, he"again appeals. The complaint is as follows: ' Now comes the city of Bessemer, Ala., and complains that within six months prior to the commencement of this prosecution, and within the limits of the city of Bessemer, Pleas Bouyer did violate section 781, of the Code of the city of Bessemer, which section reads as follows: “Any person who knowingly or willfully opposes or resists any officer of the city in serving, executing or in attempting to serve or execute any legal process, or in making or in attempting to make any lawful arrest, or in discharge of any lawful duty or who in any way interferes with, hinders or prevents, such officer from discharging his duty, must on conviction be fined not less than one nor more than one hundred dollars, and against the peace and dignity of the city of Bessemer.” The demurrers tfiereto are that\he complaint does not state a cause of action, that it does not charge the defendant with the violation of any ordinance, and that it is void because of not being signed by any one, authorized by any one. The ordinance was introduced, .and on the first page of the hook, in which the ordinance was, the following appears: “The new City Code of Bessemer, Alabama, adopted September 3, 1895, laws of the corporation in force at that time, including the charter and amendments thereto, prepared by L. Y. Lipscomb, city solicitor, and published by authority of the council of Bessemer.” On page 51 of the same book was the ordinance passed át a regular meeting of the council, on September 3, 1895, adopting the new City Code of Bessemer, from section 1 to section 813, inclusive, among them section 781 above quoted. Counsel insist, without citation of authority, that the abstract from the recorder's court was sufficient to give the circuit court jurisdiction. The complaint was not sufficient. 168 Ala. 195, 52 South. 742; 16 Ala. App. 389, 78 South. 167. . Proper proof of the ordinance was not made. Section 1220, Code 1907; 4 Alá. App. 2S7, 58 South. 949; 179 Ala. 97, 59 South. 597; 166 Ala. 612, 52 South. 347. The courts do not take judicial notice of city ordinances. 30 Atl. 538; 54 Ala. 263; 60 South. 963. Defendant cannot complain of the paucity of the transcript. The complaint was sufficient. 50 Ala. 486; 134 Ala. 414, 32 South. 731; 4 Ala. App. 287, 58 South. 949. The ordinance -was sufficiently proven. 14 Ala. App. 332, 70 South. 208; section 1220, Code 1907. The officer was attempting to enforce a duty placed upon him under Acts 1911, p. 637. Sections 6267-6269, Code 1907; 104 Ala. 160, 16 South. 68, 53 Am. S.t. Rep. 27; 147 Ala. 79, 41 South. 761.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Merritt

MERRITT, J.

The appellant was convicted in the circuit court of Bessemer of the-offense of resisting an officer. The case originated in the recorder’s court of the city of Bessemer, ,and while the judgment of that court so set out in the record does not show for what offense he was convicted, the appeal bond executed by the defendant shows that it was for such an offense. In the circuit court the solicitor filed a complaint, setting out in hsec verba the ordinance, which the defendant was charged with violating.

[1]

The defendant’s counsel moved to dismiss the cause, contending there was nothing-in the record showing the case had been tried and appealed to the circuit court; that there was no transcript or judgment showing that the recorder' had tried the defendant, and that the cause was improperly in the circuit court. This motion was properly overruled. The trial in the circuit court was de novo, áhd we fail to see how the defendant could have been hurt because a more full and complete transcript was not sent to the circuit court.

[2]

The decisions of this and the Supreme-Court are to the effect that, where one is charged with a violation of a city ordinance, it is necessary to make averments of its authoritative ordination as a rule of conduct in the municipality. The complaint in this case failing to make such averments was subject to the demurrer. Rosenberg v. City of Selma, 168 Ala. 195 , 52 South. 742 ; Benjamin v. City of Montgomery, 16 Ala. App. 389 , 78 South. 167 .

[3]

The printed code of ordinances of the city of Bessemer, purporting to have been published by authority of the council, con *667 taining as section 781 the ordinance in question, which was introduced in evidence, and which purported to go into effect September 3, 1895, and which is presumed to continue in effect, met every objection interposed to it by the defendant, Code §§ 1259, 3989; Hill v. Condon, 14 Ala. App. 332 , 70 South. 208 ; Montgomery St. Ry. v. Smith, 146 Ala. 325 , 39 South. 757 ; So. Ry. Co. v. Weatherlow, 153 Ala. 171 , 44 South. 1019 ; Adler v. Martin, 179 Ala. 97 , 59 South, 97 ; Seaboard Air Line Ry. Co. v. Taylor, 9 Ala. App. 628 , 64 South. 187 .

[4]

The evidence for the state tended to show that the arrest of the defendant was made for a violation of the state law, which requires that no person shall operate or drive a motor vehicle * * * unless such vehicle shall have the certificate of registration displayed on the rear of such vehicle, Acts 1911, p. 637. Under this act it is made the duty of “Officers of the counties, cities, towns or villages, as well as boards, committees, and other public officials of such counties, cities, towns or villages” to enforce this law. The evidence tending to show a violation of this law, it was not necessary for the city to show that it had an ordinance to like effect. The arrest was for a violation of the state law. The prosecution here is for the violation of a city ordinance, committed while making an arrest for a violation of the state law.

Por the error pointed out, the judgment of conviction is reversed.

Reversed and remanded.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 10 cases

View all citing references →

Relies on it most ⓘ

Vizzina v. City of Birmingham533 So. 2d 652 (Ala. Crim. App. 1987)
Ex Parte Hood404 So. 2d 717 (Ala. 1981)
Chaney v. City of Birmingham21 So. 2d 263 (Ala. 1944)
Chaney v. City of Birmingham21 So. 2d 268 (Ala. Ct. App. 1944)
Young v. City of Attalla144 So. 128 (Ala. Ct. App. 1932)
Frates v. Eastman57 F.2d 522 (10th Cir. 1932)

Most recent

Vizzina v. City of Birmingham533 So. 2d 652 (Ala. Crim. App. 1987)
Ex Parte Hood404 So. 2d 717 (Ala. 1981)
Miller v. City of Birmingham218 So. 2d 281 (Ala. Ct. App. 1969)
Cotton v. City of Birmingham21 So. 2d 274 (Ala. Ct. App. 1944)
Chaney v. City of Birmingham21 So. 2d 268 (Ala. Ct. App. 1944)
Chaney v. City of Birmingham21 So. 2d 263 (Ala. 1944)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 8

Depth	Case	Cited by
	Montgomery St. Ry. Co. v. Smith, 39 So. 757 (Ala. 1905)	39
	Rosenberg v. City of Selma, 52 So. 742 (Ala. 1910)	32
	Southern Ry. Co. v. Weatherlow, 44 So. 1019 (Ala. 1907)	30
	Benjamin v. City of Montgomery, 78 So. 167 (Ala. Ct. App. 1918)	12
	Hill v. Condon, 70 So. 208 (Ala. Ct. App. 1915)	7
	Seaboard Air Line Ry. Co. v. Taylor, 64 So. 187 (Ala. Ct. App. 1913)	4
	Adler v. Martin, 59 So. 597 (Ala. 1912)	51
	Lackey v. Saint Louis & San Francisco R. R., 59 So. 97 (Miss. 1912)	6

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