Full question:
In Arizona ARS 11-251.05 (C) requires after adoption or amendment to the ordiances the item shall be published. Now does the part that requires ordinace to be publish have to be completed prior to be a legal ordinance that can be enforced?
- Category: Misc
- Date:
- State: Arizona
Answer:
In many jurisdictions, an ordiance does not take effect until after the requisite publication. The idea behind it is to ensure that the public has been adequately notified of the new rule, law or ordinance prior to its effect and subsequent enforcement.
Also, the rules about publication of an ordinance are usually found in the city charter Failure to follow the publication requirements may subject the ordinance to a challenge in the civil courts. If the state also has a rule about publication requirements, it will be necessary to determine which law controls but usually the interpretation of the city charter is sought.
The basic principle is:
Charter or statutory provisions as to publication of ordinances or resolutions or notice of their pendency sometimes are construed to be merely directory. This is usually the case in the absence of a provision that the ordinance shall not take effect until published. Where provision for publication or notice of an ordinance is regarded as merely directory, it follows that mere failure to publish or give notice does not invalidate the ordinance.
5 E. McQuillin, Municipal Corporations § 16.78, (3d. ed. rev. 1989) (footnotes omitted).
In Burton v. Tucson, 88 Ariz. 320, 356 P.2d 413 (1960), the Arizona Supreme Court rejected a claim that an ordinance was invalid owing to a defect in publication. The court ruled:
[The ordinance regarding publication] provides that all ordinances shall be published; it does not provide that publication shall be a condition precedent to the validity and operation of an ordinance, or that failure to publish shall render the ordinance void.
. . . Where provision for publication of an ordinance is merely directory, it follows that failure to publish does not invalidate the ordinance.
Id., 356 P.2d at 416. See alsoB. & O. R.R. Co. v. Wright, 198 Md. 555, 84 A.2d 851, 854 (1951); Dover Housing Bd. v. Colbath, 106 N.H. 481, 213 A.2d 923, 925 (1965); Hollander v. Denton, 69 Cal. App. 2d 348, 159 P.2d 86, 88 (1945).
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
