Almon v. Morgan County

• Decision Date: 03 February 1944
• Docket Number: 8 Div. 266.
• Parties: ALMON v. MORGAN COUNTY et al.
• Court: Alabama Supreme Court

16 So.2d 511

245 Ala. 241

ALMON v. MORGAN COUNTY et al.

8 Div. 266.

Supreme Court of Alabama

February 3, 1944

Chas. H. Eyster and Ben L. Britnell, both of Decatur, for appellant.

Norman W. Harris, of Decatur, for appellees.

FOSTER, Justice.

The question in this case is whether amendment to the Alabama Constitution No. 44, which was ratified and by proclamation became effective November 15, 1940, operated to permit a local act of the Legislature, approved May 28, 1943, so to operate as to put the compensation of the Judge of Probate of Morgan County on a salary basis beginning October 1, 1943 (Local Acts 1943, page 34), according to its terms, in contravention of sections 68 and 281 of the Constitution of Alabama.

It is conceded that the Local Act cannot have the effect unless the amendment, supra, serves to modify sections 68 and 281 supra, so as to justify an application of the Act after appellant has entered upon his term of service as judge of probate.

The answer to the question depends upon a proper construction of the Amendment No. 44, supra.

There is no doubt but that an amendment to the Constitution is permissible whereby sections 68 and 281 are in substance so modified as not to prevent the immediate operation of the Local Act, supra, though to do so, would be opposed to them as thus expressed in the Constitution. Downs v. City of Birmingham, 240 Ala. 177, 198 So. 231.

The purpose of Amendment No. 44 was in response to a growing demand that public officers be placed upon a salary basis and not compensated by fees. By reason of section 96 Constitution, there had to be uniformity throughout the State as to that question. The first effort to do this was manifested in Amendment No. 2 applicable to Jefferson County and it is in the following language: "The Legislature of Alabama may hereafter, from time to time, by general or local laws, fix, regulate and alter the costs, charges of courts fees, commissions, allowances or salaries to be charged or received by any county officer of Jefferson County, including the method and basis of their compensation."

This language appears verbatim in Amendment No. 44, supra, here in question. But the latter Amendment contains the following additional provisions: "And may provide for the placing of any such officer on a salary and that the fees, costs, and allowances collected by such officer be paid into the County treasury. All acts of the regular or adjourned session of the Legislature of Alabama which convened in January, 1939, fixing or purporting to fix the compensation of any such officer on a salary basis are hereby validated and confirmed."

The acts of 1939, affected by the last clause of the Amendment, related to those putting the tax collector and tax assessor on a salary, which by their terms operated at the beginning of the succeeding term of those officers. Such an Act as to the probate judge to begin operation with the beginning of the present term of the judge failed of passage. Those acts were up for passage at the session when the Amendment No. 44, supra, was proposed, and before it was ratified. The tax officers then were serving a term to expire October 1, 1943. The term of the judge of probate then current expired in January 1941. The present incumbent was elected in November 1940, at the same election in which the Amendment was ratified. The Local Act of May 28, 1943, was enacted at the next session of the Legislature after the ratification of the Amendment. By its terms it operated on the salary of the judge of probate beginning October 1, 1943.

We revert to the question of the intent of the Legislature and people in ratifying the Amendment No. 44, supra, in respect to its effect on sections 68 and 281, as well as on section 96, Constitution.

It does not purport to amend any definite section of the Constitution. It is necessarily an amendment of the effect of section 96, supra. It confers the authority on the Legislature to alter the salaries of the county officers (naming among them the probate judges) "from time to time."

Amendment No. 2 for Jefferson County is in the same language. The enabling act of September 14, 1915, Loc. Acts 1915, p. 374, made the change operate upon the expiration of the existing terms of the officers. The effect of that amendment on sections 68 and 281 was several times considered by the Court, directly and indirectly. And in each instance the ruling was on the theory that it amended sections 68 and 281 as applied to Jefferson County. Sloss-Sheffield S. & I. Co. v. Brooks, 19 Ala.App. 107, 69 So. 81, certiorari denied Ex parte Sloss-Sheffield S. & I. Co., 209 Ala. 264, 96 So. 83; Riley v. Louisville & N. R. Co., 18 Ala.App. 279, 92 So. 23; Henry v. State ex rel. Hartsfield, 218 Ala. 71(9), 117 So. 626; Waldrop v. Henry, 207 Ala. 128, 92 So. 425; Hawkins v. Jefferson County, 233 Ala. 49, 169 So. 720; Downs v. City of Birmingham, 240 Ala. 177, 198 So. 231.

All those cases were decided before the ratification of Amendment No. 44, supra.

And all except the Downs case, supra, before the Act of the Legislature proposing Amendment No. 44. So that in using the words "from time to time" in the Amendment, it must be considered that it was understood to mean what had been so declared.

But it is said that there is a clear legislative policy showing a different interpretation upon the basis of other amendments to the same effect or their respective enabling acts. Amendment No. 4 relating to Montgomery, effective November 22, 1916, expressly operated at the beginning of the next term of office of the officers named to alter the salaries. See Jones v. McDade, 200 Ala. 230, 75 So. 988. We are not cited to an enabling act as to Montgomery County, which demonstrates appellant's theory. But the amendment itself gave clear expression to the idea that it should not affect the salaries during the pending term. But after that time, then "from time to time" had no express limitation as to sections 68 and 281.

Amendment No. 28, relating to Mobile County, effective November 21, 1934, is in substantially the language of that here pertinent, except that by express terms, it was "subject to the provisions of section 281 of the constitution," but does not include the sheriff of Mobile County. Amendment No. 33, relating to Calhoun and Tuscaloosa Counties, effective January 2, 1936, is substantially the same as that here under consideration. The enabling acts generally took operation at the beginning of the next term of office of the officers involved. This amendment as it is affected by section 96, Constitution, was called in question in Tuscaloosa County v. Shamblin, 233 Ala. 6, 169 So. 234. But its effect on sections 68 and 281 seems not to have been questioned. As counsel point out in brief, the legislature under similar amendments has many times changed the character and amount of compensation of county officers effective during their term of office, without any question being raised as to its effect.

With that history as a background, the Legislature of 1939 proposed four constitutional amendments relating to the situation here involved, which are Nos. 43, 44, 46 and 47. Amendments No. 44 (Morgan County, see Acts 1939, page 386); No. 47 (Mobile County, Acts 1939, page 580), uses substantially the same language, and only applies to the sheriff, whereas No. 28 already adopted, affects the other named county officers of Mobile County. While No. 28 is expressly subject to section 281. No. 47 has no such direct exception.

No. 43 (Etowah and Cherokee Counties, see, Acts 1939, page 1034), and No. 46 (Dallas County, Acts 1939, page 896) are the only amendments proposed by that Legislature which are expressly subject to section 281, supra, or are so in other terms. So that when the Legislature of 1939 was proposing four such amendments they used the same language as in the Jefferson County amendment, and two only saved the substance of Section 281, Constitution.

It seems perfectly clear that the Legislature intended that only those two of the four constitutional amendments should save those provisions intact. It is not for us to say that the Legislature did not understand what they were doing.

As an independent proposition, when the amendment confers the right to be exercised "from time to time" used in all of them, we think that some such effect must have been intended. It is argued that it means "from term to term." But to give it that meaning would make it add nothing. To do so from term to term did not infringe upon section 68 or 281. To have any meaning whatever, it meant to authorize such change to be repeated during the term of the incumbent. We fully recognize the salutary effect of a status where officers feel safe during their term against salary changes. The Legislature knew that also. And the Legislature prescribes the State's policy; the courts do not. These are local provisions. Some localities wanted the salary stability maintained; others did not. Either was permissible in a constitutional amendment. The choice was made by the Legislature and people at the election. Our province is only to give it effect as made.

We think the trial court correctly declared that by virtue of Amendment No. 44, supra, the Local Act of May 28, 1943, had the effect as there expressed to change the compensation of the Judge of Probate of Morgan County from a fee basis to a fixed salary of $5,000 per annum, beginning October 1, 1943.

Appellee on cross-assignments of error, takes issue with the trial court on the question of whether section 9 of the enabling act, approved May 28, 1943, supra, is void because it imposes burdens on appellant in contravention of the due process clause of the Alabama Constitution. Sections 10 and 13, and the ...