Benjamin v. City of Montgomery

78 So. 167, 16 Ala. App. 389, 1918 Ala. App. LEXIS 63

• Court: Alabama Court of Appeals
• Decided: February 5, 1918
• Docket: 3 Div. 284.
• Status: Published

Opinion

BRICKEN, J.

This prosecution originated in the recorder’s court of Montgomery. On appeal to the circuit court, the defendant was tried upon the following complaint:

“The city of Montgomery complains that Arthur Benjamin, on or about the 26th day of December, . 1916, within the limits of said city, county ánd state, and within the police jurisdiction of the city of Montgomery, did possess or have in his possession more than one quart of whisky in bottles or receptacles of the capacity of less than a quart, in violation of section 23 of the prohibition law of the city of Montgomery.”

Under the authority of Rosenberg v. City of Selma, 168 Ala. 195, 52 South. 742, we must hold that the complaint filed in the circuit court is defective, in that it fails to make averments of its authoritative ordination as a rule of conduct in the municipality, as pointed out by the first ground of demurrer. The complaint having omitted the necessary averment of its authorized ordination by the municipality, the demurrer thereto should have been sustained. And for the error in overruling the demurrer, the judgment of the lower court is reversed, and the cause is remanded.

Reversed and remanded.