Boones v. Common Council of Alexander City

• Decision Date: 14 April 1890
• Parties: BOONES v. COMMON COUNCIL OF ALEXANDER CITY.
• Court: Alabama Supreme Court

7 So. 437

89 Ala. 602

BOONES v. COMMON COUNCIL OF ALEXANDER CITY.

Supreme Court of Alabama

April 14, 1890

Appeal from circuit court, Tallapoosa county; J. R. DOWDELL, Judge.

John A. Terrell, for appellant.

MCCLELLAN J.

The present appeal is prosecuted from a judgment of conviction rendered by the circuit court, on appeal from a judgment of the mayor of Alexander City convicting the appellant of violating an ordinance of the town. The assignments of error are predicated upon the action of the circuit court in allowing proof of the ordinance alleged to have been violated to be made by the identification and introduction "of a book called the 'Ordinance Book' of the town, in which said ordinance was recorded," and in which, it was shown, all the ordinances of the town were recorded. No question was raised as to the regularity of the enactment, or as to the sufficiency of the publication of the ordinance but the sole point of the objection appears to be that the existence of the by-law could not be proved in the manner allowed. We do not think the objection is tenable. "Even in the absence of statutory provision," say Horr &amp Bemis, "the printed volume containing the city ordinances is prima facie evidence, and will be considered sufficient proof of their existence until controverted;" and, in like manner, a book purporting to contain all the ordinances, and shown to be in the custody of the corporation, as shown here, will be received without further attestation. Horr. & B. Mun. Ord. § 185; Barr v Auburn, 89 Ill. 361; Tipton v. Norman, 72 Mo. 380.

Where the point at issue involves the proper and regular enactment of the ordinance, and not merely its prima facie existence as a law of the town, a different mode of proof must be resorted to. It then becomes necessary to have recourse to the journals of the town-meeting, and from them it must appear that every essential step in the enactment of the law has been observed and taken. "Proof of the existence and identity of the ordinance," in other words, offered, should by right be all that is required of the prosecution in any case until some showing has been made that there was irregularity in the enactment of the ordinance, in which case it becomes necessary to prove that it was properly enacted in order to sustain a conviction or judgment. If no such question is raised, the presumption that the ordinance was properly passed becomes conclusive. Horr. &...