Gurley v. McAnally , 109 Ala. 359 ( 1895 )

COLEMAN, ,J.

The plaintiff complained,’in several counts, against the defendant, and the court sustained a demurrer to the complaint for a misjoinder of causes of action. There were several grounds of demurrer assigned, hut we deem it 'necessary to consider only two counts of the complaint, and the ground of demurrer which set up that the complaint contained a count in assumpsit and a count in 'case.

The controversy arises from the fifth count of the complaint, the others being confessedly ex contractu. The cause of action averred in the fifth count is based upon an ordinance of the town of Gurley, which reads as follows : Section 141 : 1 ‘Any person whose duty it is to remove any nuisance or obstruction, shall be fined as for a separate and distinct offense for each day that such nuisance or obstruction is allowed to remain, after it has become his duty to remove it, and should the party owning or having such nuisance or obstruction fail to remove the same, the marshal may have same removed at the expense of the owner, which amount may" be collected the same as any other fine or penalty.” Actions ex contractu, necessarily arise from contract, expressed or implied. An action upon contract may arise from breach of duty, imposed by contract. An action to recover damages for a bredch of duty, imposed by law or ordinance, the duty not being an element of contract and the daifiages not being fixed, is in case. These distinctions were considered in the case of White '¶. Levy, 91 Ala. 175, and authorities cited. So far from showing a contract, express or implied, or a brbach of duty imposed by contract, in the fifth count, it expressly repudiates the existence of any contract, and bases the right to recover solely upon a breach of duty imposed by the ordinance. As we have shown, such a count is in case. If the count had shown that the defendant had been lawfully fined a definite amount for refusing to remove a nuisance, action in debt would have been proper to recover the amount. So debt would lie to recover any definite sum due the town, as taxes, &c.

"We have rested the decision upon the conclusion that the ordinance is valid. We make no decision on that question. An ordinance which authorizes the imposition of a penalty for its violation must be definite in its meaning, and in the penalty fixed. — McConvile v. Mayor, 39 N. J. L. 38; Am. & Eng. Ency. of Law, Vol. 17, p. 253 and note; State v. Zeigler, 32 N. J. L. 262.

The court did not err in its ruling, and the judgment is affirmed.