Birmingham Electric Co. v. Harry

• Citation: 111 So. 41,215 Ala. 458
• Decision Date: 06 May 1926
• Docket Number: 6 Div. 654
• Parties: BIRMINGHAM ELECTRIC CO. v. HARRY.
• Court: Supreme Court of Alabama

111 So. 41

215 Ala. 458

BIRMINGHAM ELECTRIC CO. v. HARRY.

6 Div. 654

Supreme Court of Alabama

May 6, 1926

Rehearing Denied June 24, 1926

Further Rehearing Denied Jan. 20, 1927

Petition for Certiorari to Court of Appeals.

Petition of the Birmingham Electric Company for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Birmingham Electric Co. v. Ida Harry, 111 So. 39. Writ awarded; reversed and remanded.

Bradley Baldwin, All & White and Lee C. Bradley, Jr., all of Birmingham, for appellant.

Thos C. McClellan and Hugo L. Black, both of Birmingham, for appellee.

SAYRE J.

This application for certiorari to the Court of Appeals presents but one question, viz. the constitutional validity of the act approved September 29, 1919 (Acts 1919, p. 825), entitled "An act to provide a fund for support of a law library for the circuit court in counties of two hundred thousand or more inhabitants, without appropriations from the state or county treasury." This act was amended by an act approved September 27, 1923 (Acts 1923, p. 560), but the amendment made no difference in the question presented.

The decision in Swann & Billups v. Kidd, 79 Ala. 431 suffices to answer every objection taken against the act on constitutional grounds, save one, which we will proceed to consider.

The act in question pretends on its face to be based upon a classification which has often been held in this court sufficient to sustain legislative acts as general laws. Classification of this character--that is, classification based upon population--has generally served as a mere cloak for local laws, but always there has been the possibility at least that such laws might eventually extend to the whole state. In the present case there is no such possibility, and for that reason we think the act in question cannot be sustained as a general law.

Section 96 of the Constitution provides that:

"The Legislature shall not enact any law not applicable to all the counties in the state, regulating costs and charges of courts, or fees, commissions or allowances of public officers."

The "library tax" levied by this act is a charge upon litigation, and we can conceive of no plausible reason why it should not be held to fall within the purview of the above-mentioned section of the Constitution, if that section were operative in Jefferson county. But in 1912 (see Acts 1911, p. 47) an amendment to the Constitution was adopted as follows:

"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."

And this amendment is by the Court of Appeals very correctly adjudged to place Jefferson county without the operation and effect of section 96.

The question remains whether the act in question, the Act of September 29, 1919, is a local or general law. It is conceded on all hands that, if the act is local, it is nullified by section 106 of the Constitution, which requires publication in such cases, prior to the introduction of the bill, proof of which shall be spread upon the journals of the Legislative Houses, and that:

"The courts shall pronounce void every special, private or local law which the journals do not affirmatively show was passed in accordance with the provisions of this section."

Section 110 of the Constitution is familiar. It defines general and local laws as follows:

"A general law within the meaning of this article [the article on the Legislative Department] is a law which applies to the whole state; a local law is a law which applies to any political subdivision or subdivisions of the state less than the whole." According to these definitions, the law in question is a local law, unless the classification which it attempts saves it from that class, suffices to make of it a general law. Its claim to generality rests entirely upon that classification. But the operation of the amendment, supra, is limited to one county; the operation of the act in question is now and always will be limited to one county; no other county can come within the act, for invariable uniformity throughout the state--outside of Jefferson, now that the Constitution has been amended (Jackson v. Sherrod, 207 Ala. 247, 92 So. 481)--is insured by section 96. It follows, necessarily, that there can be no classification of counties with reference to population so far as concerns the subject-matter of the amendment of the Constitution. Jefferson, for the benefit of which the amendment was adopted, is sui generis; no ether county, in respect of the subject-matter of the amendment, can ever be classed with it under the Constitution as it now is. So, then, the effort at classification means nothing. The act in question is a local law, notwithstanding the form in which it is cast, and

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