Bouyer v. City of Bessemer , 17 Ala. App. 665 ( 1921 )

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 hæc verba the ordinance, which the defendant was charged with violating.

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, and 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.

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 So. 742; Benjamin v. City of Montgomery, 16 Ala. App. 389, 78 So. 167.

The printed code of ordinances of the city of Bessemer, purporting to have been published by authority of the council, containing 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 So. 208; Montgomery St. Ry. v. Smith, 146 Ala. 325, 39 So. 757; So. Ry. Co. v. Weatherlow, 153 Ala. 171, 44 So. 1019; Adler v. Martin, 179 Ala. 97, 59 So. 597; Seaboard Air Line Ry. Co. v. Taylor, 9 Ala. App. 628, 64 So. 187.

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.

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

Reversed and remanded.