Bell v. Town of Jonesboro , 3 Ala. App. 652 ( 1911 )

WALKER, P. J.

The complaint in this case set out the title of an ordinance of the town of Jonesboro, which expressed the subject of it, also its number, and the sections of it claimed to have been violated. The averments sufficiently disclosed the existence of a municipal ordinance and the provisions of it which were alleged to have been violated.—Rosenberg v. City of Selma, 168 Ala. 195, 52 South. 742; Turner v. Town of Lineville, 2 Ala. App. 454, 56 South. 608. The question of the sufficiency of the general averment of the complaint of a violation by the defendant (the appellant here) of the terms of the ordinance was not raised by any of the grounds assigned in the demurrer to the complaint.

Conceding that the third and fourth pleas contained, any matter proper for a plea, yet the defendant could not have been prejudiced by the striking- of those pleas, which merely questioned the legality of the evidence which the defendant supposed would be offered to support the charge against him, as under his plea of not guilty he could avail himself on the trial of any legal objection to which the evidence actually offered against him might be subject.

Nor could the defendant have been prejudiced by the overruling of his demurrer to the replication to his second plea, as that pleading merely raised a separate issue as to the legal existence of the ordinance alleged in the complaint, of which issue the defendant had the full benefit under his plea of not guilty, which put in issue the material allegations of the complaint, including its allegation of the existence of the ordinance mentioned.

T'he statute provides that: “All ordinances of a general or permanent nature shall be published in some newspaper of general circulation -in the city or town, but if no such newspaper is published within the limits of the corporation, such ordinances or resolutions may be published by posting copies thereof in three public places within the limits of the city or town, two of which places shall be the postoffice and -the mayor’s office in such city or town. When the ordinance is published in the newspaper it shall take effect from and after its publication, and when published bv posting it shall take effect five days thereafter, except as herein otherwise provided.” — Code 1907, § 1258. This is an explicit provision as to thé time when an ordinance shall take effect. Except as otherwise provided in the statute, an ordinance which may he published by posting takes effect five days after it is so published. A compliance with the other provisions contained in the same section of the statute as to the recording of an ordinance is not made a prerequisite to its taking effect. The provision for recording is merely directory, and an ordinance duly passed and published is effective, though not recorded and certified by the clerk as directed by the statute.—Dillon on Municipal Corporations (5th Ed.), § 607.

Evidence that there was no post office in the town, and that no newspaper was published there, was admissible for the purpose of showing which provision of the statute as to publication was applicable-.

Without regard to the question as to whether the act of the clerk of the town in fastening the ordinance to a page of the book of ordinances of the town constituted a recording of the ordinance within the meaning of the provision on that subject contained in section 1258 of the Code, so as to make his certificate as to the time and manner of the publication thereof presumptive evidence that the publication was made as stated in the certificate, the evidence as to the passage and publication of the ordinance was such as to justify the court in overruling the objections made to its introduction in evidence. The minutes of the council, which were introduced in evidence without objection, read in the light of the evidence as to the number of members constituting that body,- and identifying the paper offered as the ordinance acted on at that meeting, sufficiently showed the due passage and publication of the ordinance. The evidence showed that there were five members of the town council besides the mayor, John D. Martin; three of them being J. N. Smithson, Jack Saunders, and O. C. Walls. The minutes of the regular meeting of the council which were offered in evidence recited the presence of the mayor and the three members mentioned. They show that on a motion to suspend the regular order of business and to take up a certain ordinance, which was referred to by the introductory words of the title of the ordinance offered in evidence, “the following members voted in the affirmative: J. N. Smithson, Jack Saunders, and Q. C. Walls, and John D. Martin, none voting against same.” The mistakes made in setting out the names of two of the councilmen in this statement of the vote on that resolution do not prevent that recital from sufficiently showing that unanimous consent for the immediate consideration of the ordinance was given and evidenced as required by section 1252 of the Code. The recital shows that the affirmative vote was cast by the members of the council and the mayor. Obviously the mistakes made in setting out the names of two of the councilmen are mere clerical errors, which are corrected by a reference to that part of the minutes which states the names of the councilmen present at the meeting. The minutes further récite that said ordinance was unanimously adopted. This shows a compliance with the requirement of the statute (Code, § 1252) that, on the final passage of such a town ordinance, a majority of the members elected to the council, including the mayor, shall vote in its favor.

The paper offered in evidence had at its end the following: “Adopted. February 15, 1910. G. H. Bumgardner, Town Clerk. Approved February 15, 1910. J. D. Martin, Mayor.” And the testimony of the clerk identified it as the ordinance mentioned in- the minutes above referred to. Such- a method of identifying, the subject of the recorded action of a municipal body is not legally objectionable.—2 Dillon on Municipal Corporations (5th Ed.) § 555; Woodruff v. Stewart, 63 Ala. 206. Publication of the ordinance in the mode required by the statute under the circumstances disclosed by the evidence was testified to by the town clerk.

The finding and- judgment of the court were amply sustained by evidence showing a violation by the defendant of the .provisions of the ordinance which were set out in the complaint.

Affirmed.