Glenn v. City of Prattville

• Decision Date: 11 January 1916
• Docket Number: 3 Div. 205
• Citation: 14 Ala.App. 621,71 So. 75
• Parties: GLENN v. CITY OF PRATTVILLE.
• Court: Alabama Court of Appeals

71 So. 75

14 Ala.App. 621

GLENN v. CITY OF PRATTVILLE.

3 Div. 205

Court of Appeals of Alabama

January 11, 1916

Appeal from Circuit Court, Autauga County; W.W. Pearson, Judge.

John Glenn was convicted of violating an ordinance of the city of Prattville, prohibiting the sale of liquors, and, on appeal to the circuit court, was again convicted, and he appeals. Affirmed.

See also, 12 Ala.App. 609, 67 So. 622.

The complaint charged the violation of the ordinance of the city of Prattville by the said John Glenn in that within said city, and within 12 months before this prosecution was commenced, said John Glenn did sell, keep for sale, or otherwise unlawfully dispose of prohibited liquors or beverages, contrary to law, and in violation of an ordinance of the city of Prattville. The demurrers appear only in the bill of exceptions, and raise the issue that the city of Prattville had no valid law upon its statute books for the violation of which defendant is charged, and because the ordinance is illegal and void, because of certain irregularities in its passage, which the demurrers point out. The objections to the introduction of the ordinance were That it was not the act of the city council of Prattville in that it shows on its face that it is an ordinance of the city of Prattville, and because it appears to have been adopted and introduced at the same meeting, and unanimous consent is not shown for its immediate consideration, and other objections of like character.

Guy Rice, of Prattville, for appellant.

Eugene Ballard, of Prattville, for appellee.

BROWN J.

While the judgment of the court shows that a demurrer to the complaint was overruled, the demurrer itself is not set out in the record proper, and appears only in the bill of exceptions. Under repeated rulings, the questions sought to be raised by the demurrer are not presented for review. Beck v. West & Co., 91 Ala. 314, 9 So. 199; Brooks v. Rogers, 101 Ala. 111, 13 So. 386; Heard v. Hicks et al., 101 Ala. 102, 13 So. 256.

Courts take judicial notice of public statutes conferring authority upon municipalities in this state power to adopt by-laws and ordinances, but do not take judicial notice of such ordinances or the proceedings of the municipal board in the exercise of such power. North Birmingham Street Ry. Co v. Calderwood, 89 Ala. 247, 7 So. 360, 18 Am.St.Rep 105; Barnes v. Common Council of Alexander City, 89 Ala. 602, 7 So. 437.

Therefore, when, as in this case, the complaint avers the existence and violation of an ordinance, a demurrer thereto confesses the averments, and cannot set up matter de hors the record as to the irregularity of the proceedings of the municipal board to avoid the ordinance. In such case the demurrer is a speaking demurrer and should be overruled. Sanders v. Wallace et al., 114 Ala. 263, 21 So. 947.

The...