Young v. City of Attalla, 7 Div. 893.

• Decision Date: 01 November 1932
• Docket Number: 7 Div. 893.
• Citation: 144 So. 128,25 Ala.App. 255
• Parties: YOUNG v. CITY OF ATTALLA.
• Court: Alabama Court of Appeals

144 So. 128

25 Ala.App. 255

YOUNG v. CITY OF ATTALLA.

7 Div. 893.

Court of Appeals of Alabama

November 1, 1932

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

Emma Young was convicted of violating an ordinance of the City of Attalla, and she appeals.

Reversed and remanded.

McCord & McCord, of Gadsden, for appellant.

E. G Pilcher, of Gadsden, for appellee.

BRICKEN P.J.

In considering this case on appeal, we may pretermit a discussion of the insufficiency of the purported affidavit or complaint in the mayor's court, as no objection thereto was interposed upon the trial in said court.

On appeal to the circuit court, counsel for appellee filed a complaint wherein the violation of a certain alleged ordinance of the city was attempted to be charged. Appellant demurred to the complaint testing its sufficiency and the action of the court in overruling these demurrers is made the basis of the first assignment of error. The complaint appearing in this record, under repeated decisions of the appellate courts of this state, was wholly insufficient. Rosenberg v. City of Selma, 168 Ala. 195, 198, 52 So. 742; Benjamin v. City of Montgomery, 16 Ala App. 389, 78 So. 167; Bouyer v. City of Bessemer, 17 Ala. App. 665, 88 So. 192; Miller v. City of Huntsville, 19 Ala. App. 656, 100 So. 78; Town of Lineville v. Gauntt, 20 Ala. App. 135, 101 So. 154.

The foregoing authorities, and numerous others of like import expressly hold it is essential in a complaint of this character to aver, not only the facts constituting the violation of the ordinance in question, but in the complaint there must be set out the provisions or substance thereof and it must be averred that the ordinance was duly adopted and ordained prior to the commission of the offense, by the proper municipal authorities. The mere statement, as a legal conclusion, that the acts of the accused were committed "in violation of an ordinance," will not suffice. The complaint in this case, on appeal, failed to aver that the alleged ordinance had been duly adopted and ordained by the mayor and city council of the city of Attalla prior to the alleged commission of the acts complained of, as the law requires.

In the case of Miles v. City of Montgomery, 17 Ala. App 15, 81 So. 351, 352, the court said: "If the complaint in this case had alleged that the defendant, on or about the date named, within the police jurisdiction of the city of...