City of Selma v. Stewart , 67 Ala. 338 ( 1880 )

SOMERVILLE, J.

— This is a prosecution originating before the mayor of the city of Selma, acting ex-officio, as a justice of the peace, in which the appellee was convicted of “ the offense of obstructing the sidewalks,” in alleged violation of a municipal ordinance.

An appeal was taken from the judgment of the mayor to the Selma City Court, as specially authorized by the charter incorporating the city. — Session Acts, 1874-75, p. 380, § 62.

This section (§ 62) provides that “ the proceedings on such appeal, when the bond is approved by the mayor or councilmen, shall be as prescribed by law in case of appeal from the judgment of a justice of the peace in civil cases,” except as otherwise required in the charter.

Section 3121 of the Code (1876), prescribes that “ all such cases must be tried according to equity and justice, without regard to any defect in the summons, or other process before the justice.” This being the case, the trial in the City Court was required to be had de novo, on the merits of the case. A motion to quash the proceedings for any mere defect, other than a want of jurisdiction apparent on the face of them, could not be made for the first time in the City Court, and it does not appear that any such motion was made in the trial before the mayor. — Slaton v. Apperson, 15 Ala. 721; Catterlin v. Spinks, 16 Ala. 467; McCrary v. Smith, 1 Ala. 157.

The proper practice, in appeals of this character, has been indicated in Williams v. Hunter, 1 Ala. 297. It is to require the plaintiff to file a statement of the case, and thereupon to raise any question as to its legal sufficiency, or the jurisdiction of the justice, by demurrer. This preserves, in its full integrity, to the accused, the constitutional right guaranteed to him by § 7, of Art. 1, of the Const., “ to demand the nature and cause of the accusation” against him “ in all criminal prosecutions:”

This statement is shown to have been filed, and sets out, in hcec verba, the ordinance, of the city alleged to have been violated, but it appears not to have been acted on by the court, or demurred to by the defendant, so far as disclosed by the record. It was error in the court, therefore, to sustain appellee’s motion to quash.

The City Court also erred in taxing the costs of the proceeding against the appellant. It has been repeatedly held, that, in prosecutions of this kind, instituted by municipal corporations for the punishment of offenders against city ordinances, such municipalities are not liable for costs in any event. — Town of Camden v. Block, Dec. T. 1880; City Council of Montgomery v. Foster, 54 Ala. 62.

The judgment is reversed, and the cause remanded.