Clark v. Town of Uniontown

• Decision Date: 07 May 1912
• Citation: 4 Ala.App. 264,58 So. 725
• Parties: CLARK v. TOWN OF UNIONTOWN.
• Court: Alabama Court of Appeals

58 So. 725

4 Ala.App. 264

CLARK v. TOWN OF UNIONTOWN.

Court of Appeals of Alabama

May 7, 1912

Appeal from Circuit Court, Perry County; B. M. Miller, Judge.

Action by the Town of Uniontown against Charley Clark. From a judgment for plaintiff, defendant appeals. Reversed in part and remanded.

W. L. Pitts, Jr., and W. F. Hogue, both of Marion, for appellant.

Joseph H. James, of Uniontown, for appellee.

WALKER, P.J.

The objections suggested by the appellant (defendant below) in the circuit court to the sufficiency of the affidavit by which the prosecution was inaugurated were not available to him in that court, as he had proceeded to trial before the mayor without raising any question as to the sufficiency of the charge made against him. Turner v. Town of Lineville 2 Ala. App. 454, 56 So. 603; Code, §§ 1451, 6723. It was permissible to file a proper complaint in the circuit court on appeal.

The statutory provisions (Code, § 1258) for the recording of an ordinance and in reference to the clerk making a certificate stating the time and manner of its publication do not go to the question of its legal existence, but have reference to the manner of authenticating and proving it. An ordinance duly passed and published, is effective, though not recorded and certified by the clerk, as directed by the statute. Bell v. Town of Jonesboro, 57 So. 138. As the defendant himself, for the purpose of obtaining a ruling of the court as to the legal validity of the ordinance under which he was prosecuted, brought it to the attention of the court, and introduced evidence showing how it was undertaken to be passed, and that it was published in a newspaper of the town "as required by law," he left nothing for the court to consider in this connection, except the question as to whether the ordinance was passed in the manner required by law.

The mode of adopting an ordinance is provided for by section 1252 of the Code. Under the provision of this section, that "no ordinance or resolution intended to be of permanent operation shall be adopted by the council unless unanimous consent of those present is given for the immediate consideration of such ordinance or resolution, such consent to be shown by a vote taken by yeas and nays, and the names of the members voting to be entered upon the minutes," the required unanimous consent was properly evidenced by the minutes of the council, showing the names of the four members of it who were present and voted in favor of the motion, though the mayor did not vote, as he was not entitled to vote upon such motion, except in case of a tie. Code, § 1068. Compliance with the other provision of the section, that "no ordinance or resolution intended to be of permanent operation shall become a law unless on its final passage a majority of the members elected to said council including the mayor of cities of less than six thousand inhabitants, and in towns, shall vote in its favor," was shown by the minutes, setting out the names of the four aldermen present and voting in favor of the adoption of the ordinance; the mayor not voting. The favorable vote was by a majority of the five members elected to the council, including the mayor.

The fact that one of the members of the council was at that meeting, by its appointment, performing the duties of the clerk, who was absent (Code, § 1199), did not deprive him of the right to vote upon the passage of the ordinance. Michael v. State ex rel. Welch et al., 163 Ala. 425, 50 So. 929. The statute does not require the mayor to vote on the final passage of an ordinance.

The ordinance becomes a law if, on its final passage, it receives a favorable vote of a majority of those who would be entitled to vote on the...