This is an appeal from a conviction of remaining on premises of another after being requested to leave. Code 1940, T. 14, § 426.
Here the city recorder sat as a judge of a state court. Code 1940, T. 37, § 594. He did not purport to sentence the defendant to work on the city streets but assessed "three months at hard labor for Madison County." Cf. Code 1940, T. 37, § 595 (fines and punishments by recorders trying misdemeanors same as in state courts).
Municipal corporations may pass ordinances to carry out their charters. When they seek to penalize breaches of their bylaws they proceed "quasi-criminally." The pleading is analogous to common law declaration of assumpsit. To support a claim under a breach, the ordainment must be alleged. Case v. Mobile, 30 Ala. 538; Taylor v. City of Decatur, 40 Ala.App. 571, 117 So.2d 786. However, no ground of demurrer took this point.
In Williamson v. City of Greenville, 39 Ala.App. 237, 97 So.2d 600, we said:
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Appeals from misdemeanor trials in courts without juries follow Code 1940, T. 13, §§ 326 and 349, and by virtue of Code 1940, T. 15, § 358, are taken to the circuit court or court of similar jurisdiction.
In ordinary misdemeanor
Indictable offenses are vindicated by the State alone. Constitution 1901, § 170. Walker v. Bridgeforth, 9 Ala.App. 257, 62 So. 323 (approved Clark v. Eagerton, 207 Ala. 491, 93 So. 455). The form of suggested de novo complaint in § 363, supra, unlike that of instant concern, begins as § 170, supra, requires with "The State of Alabama."
Though this latter expression may be omitted if the substance shows a public prosecution, e. g., Mahaley v. State, 39 Ala. App. 472, 103 So.2d 824, yet here the bringing of the complaint in the name of the city but not under an ordinance—even of reference
However, the judgment of the recorder's court is not subject to this objection since the city attorney's complaint therein was surplusage. There was an affidavit to initiate the cause. This is much the situation in Smith v. State, supra.
The judgment of the circuit court is reversed and the cause remanded.
Reversed and remanded.