Oliver v. State

• Citation: 79 So. 313,16 Ala.App. 533
• Decision Date: 11 June 1918
• Docket Number: 8 Div. 591
• Parties: OLIVER v. STATE.
• Court: Alabama Court of Appeals

79 So. 313

16 Ala.App. 533

OLIVER v. STATE.

8 Div. 591

Court of Appeals of Alabama

June 11, 1918

Appeal from Circuit Court, Franklin County; C.P. Almon, Judge.

George Oliver was indicted under Act Sept. 22, 1915, § 2, for failing to work the public roads, and from the judgment he appeals. Reversed and remanded.

Wm. L Chenault, of Russellville, for appellant.

F. Loyd Tate, Atty. Gen., David W.W. Fuller; Asst. Atty. Gen., and Henry D. Jones and Travis Williams, both of Russellville, for the State.

SAMFORD J.

Section 2 of the act of the Legislature adopted September 22, 1915 (Acts 1915, p. 574), provides:

"That it shall be unlawful for any person, firm or corporation to violate any rule, regulation or law which may be adopted or promulgated by the court of county commissioners, board of revenue or like governing body, of any county under the authority conferred by this act relating to the use, control, care, operation or maintenance of any such public road, bridge or ferry and any person, firm or corporation violating the same shall be deemed guilty of a misdemeanor and upon conviction shall be fined," etc.

The defendant was indicted under this section, and upon the trial interposed several grounds of demurrer. It has several times been held that the Legislature could delegate to the board of revenue the power to establish, promulgate, and enforce rules and regulations with reference to the public roads of a county. Floyd v. State, 74 So. 752; Hicks v State, 75 So. 636.

Section 2 of the act above referred to creates the crime and fixes the penalty for a violation. In drawing indictments under a statute, it is sufficient if the language of the statute is substantially followed. Wright v. State, 3 Ala.App. 140, 57 So. 1023; Campbell v. State, 4 Ala.App. 104, 58 So. 125; Jordan v. State, 5 Ala.App. 229, 59 So. 710; Gleason v. State, 6 Ala.App. 49, 60 So. 518; Sellers v. State, 7 Ala.App. 78, 61 So. 485; McLain v. State, 72 So. 511; Porter v. State, 72 So. 776; Brannon v. State, 76 So. 991.

As was said in Curlee v. State, 75 So. 268:

"The indictment cannot be sustained on the theory that the alleged acts of the defendant were a violation of 'rules and regulations' adopted by the state live stock sanitary board. (In this case, board of county commissioners.) The courts cannot take judicial knowledge of the proceedings of the board or the rules and regulations adopted by it. Glenn v. City of Prattville. , 71 So. 75; Bivins v. City of Montgomery, 13 Ala.App. 641 . And while it is not necessary that the rules and regulations be set out in full in the indictment, where a prosecution is based on the violation of such rules and regulations, it should be averred that the alleged acts were done in violation of rules and regulations duly adopted by the board" of county commissioners or like governing body of the county, "under

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