Bagby Elevator & Elec. Co., Inc. v. McBride

• Decision Date: 14 February 1974
• Parties: BAGBY ELEVATOR AND ELECTRIC COMPANY, INC., a corporation v. Terry McBRIDE, a Minor Ten Years of Age, Who Sues By and Through His Mother, Mrs. Minnie McBride, as Next Friend. Terry McBRIDE, a Minor Ten Years of Age, Who Sues By and Through His Mother, Mrs. Minnie McBride, as Next Friend v. BAGBY ELEVATOR AND ELECTRIC CO., INC., a corporation. SC 204, SC 204X.
• Court: Alabama Supreme Court

Page 306

291 So.2d 306

292 Ala. 191

BAGBY ELEVATOR AND ELECTRIC COMPANY, INC., a corporation v. Terry McBRIDE, a Minor Ten Years of Age, Who Sues By and Through His Mother, Mrs. Minnie McBride, as Next Friend.

Terry McBRIDE, a Minor Ten Years of Age, Who Sues By and Through His Mother, Mrs. Minnie McBride, as Next Friend v. BAGBY ELEVATOR AND ELECTRIC CO., INC., a corporation.

SC 204, SC 204X.

Supreme Court of Alabama.

Feb. 14, 1974.

Rehearing Denied March 28, 1974 in No. SC 204.

Jones, McEachin, Ormond & Fulton, Tuscaloosa, for appellant.

Edward F. Morgan, Tuscaloosa, for appellee.

C. V. Stelzenmuller and D. Frank Davis, Birmingham, for Alabama Branch, Associated General Contractors of America, amicus curiae.

JONES, Justice.

The constitutionality and applicability, vel non, of Act No. 788, Acts of Alabama, 1969, p. 1418--Title 7, § 23(1), Code of Alabama, 1940 (Recomp.1958)--are dispositive of this appeal. Act No. 788 provides:

'Be It Enacted by the Legislature of Alabama:

'Section 1. All actions against persons who performed or furnished the design, planning, supervision or construction of improvements on real property, whether based on contract or tort, for damages arising out of any act or omission of such persons in the design, planning, supervision or construction of such improvements, must be commenced within four years after the final completion of such improvements, and not afterwards. Provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than seven years after such act or omission.

'Section 2. The provisions of this Act are severable. If any part of the Act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.

'Section 3. All laws or parts of laws which conflict with this Act are repealed.

'Section 4. This Act shall take effect immediately upon its passage and approval by the Governor, or upon its otherwise becoming law; but it shall apply only to causes of action arising subsequent to the effective date of this Act.

'Approved September 12, 1969.

'Time: 4:57 P.M.'

The pertinent facts are: The final completion of improvements, as contemplated by the Statute, occurred in 1959; the Act became effective September 12, 1969; plaintiff, age 10, was injured November 3, 1969; and suit was filed March 27, 1970.

Appellant, Bagby Elevator and Electric Company, sought to invoke the seven-year provision of the Act by requesting the general affirmative charge. The lower court overruled the motion and we affirm.

We first consider the contention advanced by appellee that the Act is unconstitutional as violative of Section 45 of the Alabama Constitution of 1901, which provides:

'The style of the laws of this state shall be: 'Be it enacted by the legislature of Alabama,' which need not be repeated, but the act shall be divided into sections for convenience, according to substance, and the sections designated merely by figures. Each law shall contain but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes; and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred, shall be re-enacted and published at length.' (Emphasis added.)

The pertinent portions of this section contain two component parts: First, it limits legislation to a single subject; second, it requires that this single subject be clearly expressed in the title. Thus, a statute such as the one in question may be attacked as violative of either or both of these constitutional admonitions. See 1A Sutherland, Statutes and Statutory Construction, § 18.07, at 29 (C. Sands ed., 1972). This Court, in dealing with the requirement that the subject be 'clearly expressed in the title,' has identified three objectives of Section 45:

'The object of the constitutional provision has been held to be three fold, first, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, and in order that they may have the opportunity of being heard thereon, by petition or otherwise, if they shall so desire; second, truly to inform members of the legislature who are to vote upon the bill, what the subject of it is so that they may not perform that duty, deceived or ignorant of what they are doing; and third, to prevent the practice of embracing in one bill several distinct matters, none of which, perhaps could singly obtain the assent of the legislature, and then procuring its passage by a combination of the minorities in favor of each of the measures, into a majority that will adopt them all. Lindsay v. United States Savings & Loan Ass'n, 120 Ala. 156, 24 So. 171, 42 L.R.A. 783; Walker v. Griffith, 60 Ala. 361.' State v. Hester, 260 Ala. 566, 72 So.2d 61 (1954).

The title to the Act is as follows:

'Act No. 788

H.899--Hill

'AN ACT

'To regulate further the time within which actions against persons who performed or furnished the design, planning, supervision or construction of improvements on real property, whether based on contract or tort, for damages arising out of any act or omission of such persons in the design, planning, supervision, or construction of such improvements must be commenced.'

The title seems to indicate rather clearly that the Act to follow is a traditional statute of limitation. That Act No. 788 is not of this type is demonstrably clear from its express wording which establishes a different event to begin the running of the statute--the completion of the improvements rather than the accrual of the cause of action. Furthermore, the appellant points out:

'The courts of Alabama see a distinction between barring the Remedy only (i.e., the traditional statute of limitations) as opposed to barring the Cause of action. The statute of limitation under consideration here is different from other statutes of limitation in the same chapter of the Code . . . Where the regular or usual statutes of limitations affect only the remedy, the improvement statute affects the right to bring the cause of action or to maintain suit on a cause of action.'

The point is even more forcefully made in the brief submitted by the Alabama Branch, Associated General Constractors of America, appearing as amicus curiae:

'Section 23(1) is not an ordinary statute of limitations. The ordinary statute of limitations begins to run from the date of the completion of the improve-whereas section 23(1) runs from the date of the completion of the improvement. The ordinary statute of limitations affects the time limit in which an action must be commenced. Section 23(1) affects whether a substantive right of action exists at all. It affects substantive rights and duties themselves, and the resulting question of substantive liability. It is not merely a procedural bar to the remedy for a substantive liability.' (Emphasis Added.)

Thus, the issue becomes whether the Act contained one subject which was so 'clearly expressed in its title,' as to satisfy the standards set by this Court, i.e., to fairly apprise the people of subjects being considered and to inform members of the legislature so that they may not perform their duty deceived or ignorant of what they are doing. (There is no question of 'logrolling', so the third requirement, of course, does not apply.) There are many cases on this point and the results are varied. This Court has stated that it is difficult to lay down a fixed and definite rule that will mark the line between what is and what is not violative of this Section Lovejoy v. City of Montgomery, 180 Ala. 473, 61 So. 597 (1913), and that each case must necessarily rest upon its own bottom. Adjudicated cases serve as illustrations only, and are helpful, but are only controlling when they are Closely analogous. Spurlock v. J. T. Knight & Son, 246 Ala. 33, 18 So.2d 685 (1944).

Although such closely analogous cases may exist, none has been cited in brief nor has the Court found any. It seems clear, however, that when the title purports to establish a traditional statute of limitations, but the body in fact does something different, not merely in degree but in kind, by declaring, in effect, that no substantive right to bring an action exists 7 years after a certain event, then the subject has not been clearly expressed and the purposes of the title as established by this Court have not been met. ¹ Thus, as applied to causes of action accruing more than 7 years after completion of the improvement, the Act, by virtue of its defective title, violates Section 45 of the State Constitution.

The other point of attack on Act No. 788 is that the body of the Act must be limited to one subject. This Court has established a policy of liberality when dealing with Section 45 so as not to hamstring the legislature. An expression of this liberal policy is found in Knight v. West Alabama Environmental Improvement Authority, 287 Ala. 15, 246 So.2d 903 (1971). There it was urged that Sections 3, 8(7) and 8(9), authorizing corporations created under Act No. 1117 to render financial assistance to industries and private corporations, and Section 8(10), authorizing corporations created under the Act to engage in work of watershed improvement, were not expressed in the title of the Act, thus placing the Act in violation of Section 45 of the Alabama Constitution of 1901.

This Court held in Knight that the title expressed a general idea of subject--the study, control, abatement, and prevention...