Lake Erie & Western Railroad v. City of Noblesville

44 N.E. 652, 16 Ind. App. 20, 1896 Ind. App. LEXIS 324

Opinion

Gavin, J.

In a suit to recover the penalty for a violation of a city ordinance, so much of the ordinance as relates to the offense must be referred to in the complaint by number of the section or sections and date of adoption. Green v. City of Indianapolis, 25 Ind. 490; Clevenger v. Town of Rushville, 90 Ind. 258; Burns’ R. S. 1894, section 3501.

Where, however, one section of an ordinahce defines the offense and fixes the penalty, while the following section merely provides for the mode of publication, it is necessary to designate in the complaint only the former section and not the latter.

In such an action the city is not required to aver or prove publication of the ordinance, unless this fact be denied by affidavit. Lake Erie, etc., R. R. Co. v. City of Noblesville, 15 Ind. App. 697; Green v. City of Indianapolis, supra; Burns’ R. S. 1894, section 3499.

Judgment affirmed.