Shapiro v. City of Birmingham
Decision Date | 30 June 1942 |
Docket Number | 6 Div. 896. |
Citation | 10 So.2d 38,30 Ala.App. 563 |
Parties | SHAPIRO v. CITY OF BIRMINGHAM. |
Court | Alabama Court of Appeals |
Rehearing Denied Oct. 6, 1942.
Morel Montgomery, of Birmingham, for appellant.
Ralph E. Parker, of Birmingham, for appellee.
The appellant was convicted in the Circuit Court of Jefferson County for the violation of an ordinance of the City of Birmingham, Alabama, and appeals.
There are two points urged as error in brief and argument which invite our review. The first challenges the constitutionality of the ordinance upon which prosecution was rested. The second relates to the action of the court in refusing to challenge for cause one of the twenty-four jurors in the panel from which the jury was to be selected to try the case. We discuss them in this order.
The validity of the ordinance cannot be considered for the reason that it nowhere appears in the record.
The impression probably prevailed that the courts will take judicial notice of the ordinances, laws, and by-laws of the City of Birmingham by virtue of Section 7 of the General Acts of Alabama, 1915, p. 294 et seq. This was the law (Robertson v. City of Birmingham, 28 Ala.App. 393, 185 So. 190; Milner v. City of Birmingham, 201 Ala. 689, 79 So. 261) until May 31 1941, when the present (1940) Code of Alabama became effective.
A strict and studious investigation has convinced us that Section 7 of the Act, supra, providing that the courts should take judicial knowledge of such ordinances is not now extant having been omitted from the new code and thereby repealed when the new code became effective.
Title 1, Section 9 of the Code of 1940 is: (Supplied emphasis.)
A thorough search reveals that the 1915 Act, supra, was omitted from the present codification of our laws. Shepard's Annotations confirms this conclusion. Shepard's -Alabama Citations, Vol. XXVII (May 1942, No. 1) p. 174.
The mentioned Act (1915, p. 294 et seq.) is what is termed a general law of local application and comes within the classification of the statutes specifically repealed by the foregoing code section, if not embodied in the code. The editor's comment captioning the annotations under the foregoing code section points this out: "It should be noted that this section now provides for the repeal of all those laws commonly known as general laws of local application not included in this Code."
Therefore, under the existing status of the law, it seems that the ordinance, here, is subject to the same rules of pleading and evidence as those of any other municipal corporation. And the courts (in absence of a special statute to the contrary) do not take judicial notice of the ordinances, laws, and by-laws of municipal corporations. 9 Alabama Digest, Evidence, + 32.
Inasmuch as the ordinance fails to appear anywhere in the record, we cannot review the question of its constitutionality. It is not before us for consideration.
The remaining question is whether a city policeman in the jury panel from which the jury is to be selected to try the case is subject to challenge for cause, Code 1940, Title 30, § 55(6), where the City, as here, is plaintiff in the prosecution for the violation of its ordinance. He undoubtedly is subject to peremptory challenge.
Brazleton v. State, 66 Ala. 96.
The specific question seems to have been decided in City of Birmingham v. Gordon, 167 Ala....
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