Opinion
1 Div. 16.
November 3, 1931.
Appeal from Circuit Court, Mobile County; J. Blocker Thornton, Judge.
Horace Jackson was convicted of operating a motor vehicle on the public highway while intoxicated, in violation of an ordinance of the city of Prichard, and he appeals.
Affirmed.
Outlaw, Kilborn Seale, of Mobile, for appellant.
The evidence fails to show that any ordinance was in fact adopted by the town of Prichard. It shows only the making of a mere motion, and a motion is not an ordinance. Code 1923, § 1993; 2 McQuillin, Mun. Corp. 522; American Const. Co. v. Seelig, 104 Tex. 16, 133 S.W. 429; Vance v. Pleasanton (Tex.Civ.App.) 261 S.W. 457. Municipal ordinances must be clear, certain, and duly promulgated. Woco Pep Co. v. Montgomery, 213 Ala. 452, 105 So. 214; Green v. Demopolis, 20 Ala. App. 115, 101 So. 529; Kreulhaus v. Birmingham, 164 Ala. 623, 51 So. 297, 26 L.R.A. (N.S.) 492. In cities of less than 6,000, an ordinance must have the affirmative vote of at least four aldermen. Code 1923, § 1993. Before an ordinance can become effective, it must be published, and there was no sufficient publication in this case, which was the mere publication of the extract from the first meeting of the council. Hall v. Phenix City, 21 Ala. App. 247, 107 So. 221; Smith v. Town of Eclectic, 18 Ala. App. 329, 92 So. 212.
G. B. Dunning, of Mobile, for appellee.
The ordinance in question is a reference ordinance, and is sufficient. Phoenix Assur. Co. v. Fire Dept., 117 Ala. 631, 23 So. 843, 42 L.R.A. 468; Casteel v. Decatur, 215 Ala. 4, 109 So. 571. The ordinance had the vote of the mayor and three aldermen, which was sufficient. Bell v. Jonesboro, 3 Ala. App. 659, 57 So. 138; Miller v. Huntsville, 19 Ala. App. 656, 100 So. 78. The certificate of publication shows a compliance with the statute requiring publication of ordinances. Strickland v. Samson, 16 Ala. App. 592, 80 So. 166. See, also, Cooper v. Valley Head, 212 Ala. 125, 101 So. 874; Clark v. Uniontown, 4 Ala. App. 264, 58 So. 725; Sloss-Sheffield Steel Iron Co. v. Smith, 175 Ala. 260, 57 So. 29; Glenn v. Prattville, 14 Ala. App. 621, 71 So. 75; Barnes v. Common Council of Alexander City, 89 Ala. 602, 7 So. 437.
The point raised by the record is that the ordinance under which the prosecution is begun is not valid, in that: (1) The ordinance on its passage failed to receive the vote of four aldermen; (2) the ordinance was not published as required by section 1999 of the Code of 1923.
So far as the first contention is concerned, we find in it no merit. The ordinance on its passage received the vote of the mayor and three aldermen. This vote meets the requirements of the Code 1923, § 1993.
The other question is not so simple. Section 1999, Code 1923, requires all ordinances or regulations of a general or permanent nature to be published in the manner therein specified.
The ordinance proposed for adoption by motion of Councilman Frasch on March 6, 1928, and "adopted" March 20, 1928, was "Document No. 33," being State Highway Code as adopted by the Legislature in its regular session in the year 1927 (Acts 1927, p. 348). The motion of March 6th, and the minutes reciting its adoption on March 20th, were published, but there was no publication of Document No. 33, which was the ordinance sought to be adopted.
Under our decision, the "Highway Code" adopted by the state could be enacted as an ordinance of the municipality by reference, sufficiently describing it. City of Montgomery v. Davis, 15 Ala. App. 606, 74 So. 730. Every person to be affected by its adoption is conclusively presumed to know its contents, and notice of its adoption as a Code governing traffic in the city of Prichard is notice to all concerned of every provision applicable to Prichard. Sloss-Sheffield Steel I. Co. v. Smith, 175 Ala. 260, 57 So. 29.
Objection is made that the ordinance is too informal to be an enactment of the city council, in that it begins: "Motion made by Councilman Frasch" and instead of: "Be it ordained," etc. The form of an ordinance, as prescribed by the Code, is directory, and if the ordinance, though not in form, contains the material statements necessary to a valid enactment, the ordinance will be upheld. Glenn v. City of Prattville, 14 Ala. App. 621, 71 So. 75.
The following appears of record with reference to the adoption of the ordinance:
"Ordinance No. 252
"Sec. 1. Motion made by Councilman Frasch, that State Highway Code, as adopted by the Legislature of the State of Alabama in Regular Session in the year 1927 at Montgomery, Alabama, and known as Document No. 33 be adopted by the City of Prichard and to become the law for the regulation of traffic in said City the same as if herein specifically enumerated. And all ordinances in conflict are hereby repealed.
"Sec. 2. Be it further ordained that this ordinance go into effect after publication as required by law. Introduced March 6th, 1928, continued for future consideration.
"Attest W. I. Davis, Clerk.
"Mayor."
"(From page 45, containing the minutes of the regular meeting of March 20th, 1928):
"On March 6th, 1928 an ordinance was introduced asking that the State Highway Code be adopted as the traffic code of the City of Prichard. Councilman Barnes moved that the ordinance be adopted as read, seconded by Councilman Frasch, and on aye and nay vote ordered by the Mayor. The following voted aye for the adoption of the ordinance:
"Mayor T. M. Wilkins
"Councilman N.M. Barnes
"Councilman E. B. Frasch
"Councilman I. E. Myles
"Nays none.
"The Mayor declared the ordinance adopted.
"Attest W. I. Davis, Clerk.
"T. M. Wilkins, Mayor."
The publication of this ordinance was sufficient to meet the requirements of the statute. Ex parte City of Albany, 213 Ala. 371, 106 So. 200.
We find no error in the record, and the judgment is affirmed.
Affirmed.