Section 1353 of the Code of 1923 provides: "All persons are liable to work on the public road, except those exempt by the succeeding section." Section 1354 provides the exemptions, but, as these exemptions constitute defensive matter, it is not here necessary to notice them. Section 5456 of the Code of 1923 provides:
"Any person liable to road duty who willfully fails or refuses, after legal notice, to work the public roads, either in person or by substitution, without a sufficient excuse therefor, must, on conviction, be fined not less than three dollars nor more than ten dollars for each day for which he is so in default and may also be imprisoned in the county jail, or put to hard labor for the county, for not more than sixty days."
The prosecution in this case, as indicated by the complaint of the solicitor was brought under the foregoing section of the code, and, while clearly demurrable, in that it fails to charge willfulness, is not void, and will support a conviction under the section of the code above quoted.
Under section 1347 of the Code of 1923, courts of county commissioners are given powers in enacting rules and regulations regarding the building and maintenance of public roads. which authority has been held to include the management and regulation of persons liable to road duty not inconsistent with the statutes of the state, and section 1349 of the code fixes a penalty for the violation *Page 77 of such rules and regulations when legally adopted and promulgated.
Prosecutions under section 1349 must set out substantially the ordinance alleged to have been violated, in the absence of which a conviction will not be upheld. Sullivan v. State,19 Ala. App. 484, 98 So. 323; Craven v. State, 18 Ala. App. 48,88 So. 457; Isbell v. State, 17 Ala. App. 465, 86 So. 169. Courts do not take judicial notice of such ordinances, and unless properly pleaded are not legally informed as to their contents.
On the face of this record, this prosecution was for a violation of section 5456 of the code, and the admission in evidence of the ordinance adopted by the commissioners' court approved February 20, 1922, was irrelevant and illegal, and could not, as was attempted to be done in this case, be made the basis of the prosecution. The prosecution not being for a violation of the county ordinance, the admission of the ordinance was error.
The other questions will probably not arise on another trial.
For the error pointed out, the judgment is reversed and the cause is remanded.
Reversed and remanded.