McClure v. State, 88 So. 35

McClure v. State

88 So. 35 | Ala. Ct. App. | 1920

The appellant was arrested on a charge of violating a rule or regulation promulgated by the court of county commissioners of Clarke county levying a vehicle tax for the privilege of using vehicles on the roads of the county. He sued out a writ of habeas corpus, alleging that the ordinance which he was charged with violating was invalid.

The first contention is that the ordinance was not adopted at a term of the court authorized by law. The minutes of the court show the proper organization of the regular term of the court in February and regular adjournment and organization from time to time, including the term at which the ordinance was adopted. No regular term of the court having intervened, the acts done at the adjourned term are legal. Acts 1919, p. 703; Matkin et al. v. Marengo Co., 137 Ala. 155, 34 So. 171; Board, etc., v. Merrill, 193 Ala. 521, 68 So. 971; Hicks v. State,16 Ala. App. 88, 75 South.

The minutes of the court show a sufficient adoption of the ordinance. It shows the proposal of the ordinance and its adoption by unanimous vote. Minutes of such courts are not required to be kept with the same technical accuracy as are records of courts of general jurisdiction. Adams v. Southern Ry. Co., 9 Ala. App. 201, 62 So. 466.

There is nothing in the Constitution to prevent the requirement for the payment of a full year's license for use of vehicles on the roads from the adoption of the ordinance in April until the end of the year. The Legislature may pass laws which may comprehend past transactions when such laws do not impair vested rights or the obligations of contracts. Citizens' Mut. Ins. Co. v. Lott, 45 Ala. 185.

The ordinance is clear and unambiguous, and similar ordinances have been many times upheld by this court. The Legislature may delegate the power to enact them and it has done so. Acts 1915, p. 573; Windham v. State, 16 Ala. App. 383,77 So. 963; Foshee v. State, 15 Ala. App. 113, 72 So. 685; Dunlap v. State, 16 Ala. App. 440, 78 So. 638; Mills v. Conecuh Co. (Sup.) 85 So. 564;¹ Posey v. State, 86 So. 117;² Strawbridge v. State, 16 Ala. App. 195, 76 South: 479.

The court of county commissioners had no authority to fix the punishment for a violation of the ordinance. This was done by the Legislature, and punishment for violation must be had under the act of the Legislature, and not under the ordinance. Hicks v. State, 16 Ala. App. 88, 75 So. 636. The affidavit is not only defective in that it fails to sufficiently set out the ordinance (Isbell v. State, 86 So. 169),³ but the affidavit charges no offense known to the law of this state and would not support a conviction for crime. It follows that the judgment must be reversed, and a judgment will be here entered discharging the defendant. The motion to dismiss the appeal, being made after submission on the merits, could not be granted, in the absence of a motion to set aside the submission, which motion was not made.

Reversed and rendered.

¹ 204 Ala. 40.

² Ante, p. 448.

³ Ante, p. 465.