City of Guntersville v. Walls

• Decision Date: 24 March 1949
• Docket Number: 8 Div. 477.
• Citation: 39 So.2d 567,252 Ala. 66
• Parties: CITY OF GUNTERSVILLE v. WALLS.
• Court: Alabama Supreme Court

39 So.2d 567

252 Ala. 66

CITY OF GUNTERSVILLE v. WALLS.

8 Div. 477.

Supreme Court of Alabama

March 24, 1949

Starnes & Starnes, of Guntersville, for appellant.

Marion F. Lusk, of Guntersville, for appellee.

Paragraph 3 of the bill alleges that on April 21, 1939, the City Council of the City of Guntersville passed, adopted and approved Ordinance No. 231, a zoning ordinance, in pursuance of authority conferred by General Acts 1935, p. 1121, No 533, discribing the ordinance and the purpose thereof. Paragraph 6 alleges that respondent has violated said ordinance in that he has commenced construction of a building in a zoned district without a zoning permit. Paragraph 7 alleges respondent intends to use said building in a manner violative of said ordinance and which would be offensive hazardous, etc. Paragraph 8 alleges said ordinance was in full force and effect in August, 1948, when the alleged violation was committed, etc.

LIVINGSTON, Justice.

The city of Guntersville, a municipal corporation organized under the laws of the state of Alabama, instituted this suit in the Circuit Court, in Equity, of Marshall County, seeking an injunction restraining Oliver J. Walls from violating Zoning Ordinance No. 231 of said city. The alleged violation was that Walls began the erection and construction of a building in which he proposed to operate a corn sheller, without having first filed an application for, and obtained a zoning building permit as required by said ordinance.

The bill was sworn to. Respondent interposed demurrers to the bill, which were overruled. He then answered, admitting all of the allegations of the bill, except those contained in paragraphs 3, 6, 7, and 8, which he categorically denied under oath. There are no cross assignments of error, and the ruling on demurrer is not before us. The trial court denied a temporary restraining order, and set the cause down for hearing on bill and answer.

Because of the rejection of certain evidence proffered by complainant, the cause must be reversed.

Section 369, Title 7, Code of 1940, provides:

'Ordinances by-laws and resolutions purporting to be published by authority of the council or other governing body, in book or pamphlet form, and any written or printed book, code or revision of the by-laws, resolutions or ordinances of any municipal corporation of this state purporting on the face of the book or pamphlet to be written or printed by authority or to be a code of ordinances, resolutions or by-laws of such municipal corporation, or certified on such book or pamphlet under the hand of the clerk or recording officer of such corporation, as being an official publication of ordinances, resolutions, or by-laws of such municipal corporation, and any such book or pamphlet certified by such official as correct, shall be prima facie evidence of the due adoption, publication, and continued existence of the by-laws, resolutions or ordinances therein written or printed, or certified as correct, as of the dates mentioned or provided for therein, in any of the courts, or in any legal proceedings in this state, without further proof.'

Ordinance Book No. 3 of the city of Guntersville, and containing zoning ordinance No. 231, was offered in evidence by complainant with specific reference to said ordinance No. 231. It bore the certificate required by section 369, supra, under the hand of the city clerk.

The specific objection made to the introduction of Ordinance Book No. 3 was as follows: (Mr. Lusk) 'If the court please, I object to that because under the pleadings in this case there is still no proof that the ordinance was passed, adopted and approved pursuant to the Act of 1935. It is my position that complainant, having alleged that the ordinance was passed in pursuance to all those requirements, will have to show that those requirements were followed and that issue having been joined on those allegations, I believe the burden to be on the complainant in that respect.' The court sustained the objection, and thereby committed error to reverse.

Section 369, supra, provides that an ordinance book, certified under the hand of the clerk or recording officer of such municipal corporation, as being an official publication of ordinances, resolutions or by-laws of such municipal corporation, and any such book or pamphlet certified by such official as correct, shall be prima facie evidence of the due adoption, publication, and continued existence of the by-laws, resolutions or ordinance therein written or printed, or certified as correct, as of the dates mentioned or provided for therein, in any of the courts or in any legal proceedings in this State, without further proof.

The burden of proof under the pleadings in this case was on complainant city. But the proffered ordinance book met that burden and made out a prima facie case. The burden of proceeding or going forward with the evidence, then shifted to respondent. The case made by the city is only prima facie, and may be defeated by a showing that the ordinance was not in fact duly and legally adopted. But that burden rests on respondent.

While the foregoing is sufficient for a reversal of the case, in view of a retrial we think another ruling of the trial court sustaining objection to evidence offered by complainant should have our attention.

The following factual background is the basis of the court's ruling now discussed. On March 20, 1939, and for sometime prior thereto, the city of Guntersville functioned under what is generally known as the 'Aldermanic' form of government. At a meeting of the council on March 20, 1939 Zoning Ordinance No. 231 was introduced Thereafter at a meeting of the council on April 3, 1939, the ordinance was read and discussed and, on motion, action thereon deferred until the next regular meeting of the council. At a regular meeting of the council on April 17, 1939, the ordinance was again discussed and action thereon deferred until April 21, 1939, to which date the regular meeting of April 17th was regularly adjourned. On April 21st the ordinance was adopted. In May 1946, the city of Guntersville changed from the 'aldermanic' to the commission form of government. On ...