"Response to Inquiry by Court of Appeals by Thomas and Brown, Justices.
"In Ex parte Tillery (Elliott v. City of Tuscaloosa),22 Ala. App. 193, 114 So. 15, opinion rendered on August 2, 1927, the Court of Appeals construing Section 1943, Code 1923, held that the sureties on an appeal bond of a defendant convicted of the violation of a city ordinance were liable for the costs of the appeal where the appeal was dismissed, observing: 'Section 1943 of the Code of 1923 provides that a defendant may appeal to this court from a judgment of conviction in the circuit court and "may give bail, with sufficient sureties, conditioned that he will appear and abide the judgment of the appellate court (etc.)." The record in the case of Percy Elliott v. City of Tuscaloosa, supra, [21 Ala. App. 669, 106 So. 916], shows that this was done in that case, and that petitioner was one of the sureties on said Elliott's bond. Elliott, the appellant in that case, has not "abided the judgment of this court" until the costs on his appeal for which judgment was rendered are paid. Hence petitioner is bound.'
"Said section of the code was reenacted in its exact verbiage by the Acts of 1935, adding as an amendment thereto the following: 'When the appeal is taken by the defendant and bail is given pending the appeal, and the judgment of conviction is affirmed or the appeal is dismissed, the defendant is bound by the undertaking of bail to surrender himself to the town marshal or chief of police of the city within fifteen days from the date of such affirmance or dismissal, and if he shall fail to do so, the clerk of the court from which the appeal is taken, upon motion of the city, must endorse the bail bond forfeited, and a writ of arrest must be issued by such clerk *Page 560 to the sheriff, and if not executed another must be issued, and so on until the defendant is arrested, and upon arrest he shall be delivered to the chief marshal or chief of police and the sentence must, without delay, be carried out as if no appeal had been taken; and whenever an undertaking of bail is forfeited as herein provided, a conditional judgment must be rendered by the court in favor of the city and the same proceedings had thereon for the city as is authorized by law to be had in the name of the State for the use of the County in state cases.'
"Said section as amended was carried into the Code of 1940 as Section 593, Tit. 37. It is a familiar rule of statutory interpretation that the reenactment of a statute which has been judicially construed is an adoption of the construction unless a contrary intent clearly appears. This rule is supported by numerous authorities cited in 18 Alabama Digest, Statutes, 225 3/4, p. 132. This court in People's Auto Company v. State,219 Ala. 280, 121 So. 908, applied the rule to a judicial interpretation made by the Court of Appeals. See Patterson v. State, 16 Ala. App. 483, 79 So. 157. There is nothing in that part of the present statute added by amendment that clearly shows a legislative intent not to adopt the amendment with said judicial interpretation as expressed by the Court of Appeals.
"Our conclusion, therefore, is that certified questions 3 and 4 should be answered in the affirmative. Certified questions 1 and 2 are answered in the negative. The judgment for the fine and costs assessed and accruing in the law and equity court are to be enforced and collected as provided in that part of the statute that was added by amendment if the defendant is in custody, or by a forfeiture on the bond in case he fails to appear; and the judgment for the costs accrued in the circuit court should be enforced as provided by Section 592, Tit. 37, Code 1940."
For the purpose of clarity and information, and in order that the conclusions of the Supreme Court may be completely disclosed, we have herein above set out also the dissenting opinion. We are, of course, governed by the law as expressed in the opinion of the majority members of the court.
It follows, therefore, that the motion is due to be denied, and it is so ordered.
Motion denied.