Oliver v. State

79 So. 313, 16 Ala. App. 533, 1918 Ala. App. LEXIS 213

• Court: Alabama Court of Appeals
• Decided: June 11, 1918
• Docket: 8 Div. 591.
• Status: Published

Opinion

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 mile, 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.

[1] 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 hoard of revenue the power to establish, promulgate, and enforce rules and regulations with reference to the public roads of a county. Floyd v. State, 15 Ala. App. 654, 74 South. 752; Hicks v. State, ante, p. 88, 75 South. 636.

[2] 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 South. 1023; Campbell v. State, 4 Ala. App. 104, 58 South. 125; Jordan v. State, 5 Ala. App, 229, 59 South. 710; Gleason v. State, 6 Ala. App. 49, 60 South. 518; Sellers v. State, 7 Ala. App. 78, 61 South. 485; McLain v. State, 15 Ala. App. 24, 72 South. 511; Porter v. State, 15 Ala. App. 218, 72 South. 776; Brannon v. State, ante, p. 259, 76 South. 991.

[3, 4] As was said in Curlee v. State, ante, p. 62, 75 South. 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 [14 Ala. App. 621], 71 South. 75; Bivins v. City of Montgomery, 13 Ala. App. 641 [69 South. 224]. 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 tbe board” of county commissioners or like governing body of the county, “under the provision of the statute conferring on the board such power.” Curlee v. State, supra.

, [5] The indictment in this case does not undertake to follow the language of section 2 of the act creating the offense; the. offense being the violation of a rule, regulation, 'or law adopted or promulgated by the court of county commissioners, or like governing body of the county, and the failure to work being the quo modo of the violation. The demurrer to the indictment should have been sustained.

For this error, the judgment is reversed, and the cause is remanded.

Reversed and remanded.