Brandon v. Askew

• Decision Date: 19 January 1911
• Citation: 172 Ala. 160,54 So. 605
• Parties: BRANDON, AUDITOR, v. ASKEW.
• Court: Alabama Supreme Court

54 So. 605

172 Ala. 160

BRANDON, AUDITOR, v. ASKEW.

Supreme Court of Alabama

January 19, 1911

Rehearing Denied Feb. 16, 1911.

Appeal from Circuit Court, Montgomery County; W. W. Pearson, Judge.

Mandamus by D. D. Askew, as solicitor, against W. W. Brandon, as auditor. From an adverse judgment, defendant appeals. Reversed and rendered.

Alexander M. Garber, Atty. Gen., and Thomas W. Martin, Asst. Atty Gen., for appellant.

B. K McMorris, for appellee.

SAYRE J.

By the act of March 2, 1907 (Gen. Laws 1907, p. 255), the Fifteenth judicial circuit was created, with a judge and solicitor. It was provided that the salary of the solicitor should be $1,800 per annum, and the solicitor, appointed by the Governor on March 7, 1907, has since that time been in receipt of the salary provided by the act. Now he seeks to have the auditor draw a warrant in his favor for the difference during his incumbency between the salary as fixed by the act creating the Fifteenth circuit and the salary of other circuit solicitors which has been fixed since February 21, 1893, at $2,400 per annum. Code 1896, § 5527; Code 1907 § 7791. These sections provide in identical language as follows: "The solicitor of each judicial circuit shall be paid a salary of twenty-four hundred dollars per annum, in monthly installments, on the warrant of the auditor drawn upon the treasurer." By an act approved March 6, 1907, the state was divided into 16 circuits. Gen. Acts 1907, p. 367. This act also provided for the Fifteenth circuit. It provided that the Governor should immediately appoint a judge and a solicitor for circuits in which vacancies in such offices existed. It did not deal with the subject of salaries. As has been indicated, petitioner was appointed on the next day. The Code of 1907 was adopted by an act approved July 27, 1907, and became operative May 1, 1908. Petitioner's argument in its several aspects has sought to eliminate the act of March 2, 1907, and thus to bring his case within the operation of the general law affecting the salaries of solicitors.

In his opinion, which has been incorporated into the transcript, the learned judge of the Fifteenth circuit held that the act of March 2, 1907, was violative of section 105 of the Constitution of 1901. The relevant provision of that section is expressed as follows: "No special private or local law, except a law fixing the time of holding courts, shall be enacted in any case which is provided for by a general law, or when the relief sought can be given by any court of this state." His theory, we gather, was that so long as there is to be found in the statute book a law fixing the salary of circuit solicitors in general terms, the Legislature is without power, when creating a new office of that character, to fix the salary of the new officer at a different amount. This opinion involved of course a holding that the act under consideration is a local act. And it has been so held. State ex rel. Attorney General v. Sayre, 142 Ala. 641, 39 So. 240. Whatever of obscurity there may be in this provision of the Constitution, it is certain that it was not intended to prohibit all local legislation. It was not intended to prohibit local legislation on subjects according to any specific classification. That was done in section 104, where those classes of local laws which were to be prohibited are catalogued, and presumptively the framers of the Constitution said in that section all they intended to say on that subject. It was not intended to operate against local legislation in those cases where a local statute undertakes to do something that has been precisely done in a general law. It could not be assumed that the Legislature would waste its time in the duplication of statutes. But if the local bill proposes something different from the provisions of the general law, and not within the catalogue of section 104, and in a case where the relief may not be had in some proceeding outside of the Legislature, how has it been provided for, and where is the inhibition to enact the local law? It seems, then, that this provision of the Constitution was intended to prohibit the enactment of special, private, or local laws to meet the purposes of particular cases which may be accomplished by proceedings outside of the Legislature under the provisions of general statutes enacted to meet all cases of that general character. And it is made the duty of the Legislature to pass general laws under which local and private interests shall be provided for and protected. Const. § 109. Such seems to have been the acceptance of this provision in City Council of Montgomery v. Reese, 149 Ala. 188, 43 So. 116. It may be conceded that if the Legislature creates a new judge or solicitor, in the absence of provision to the contrary, the new officers would take their salaries under the general provision of the Code. But no Legislature can dispose of the right of its successors to provide for and protect a local, special or private interest by local, special or private law, except by the enactment of a general law under which the local, special, or private interest may be adequately provided for and protected without further legislation. There was, of course, and could be, no way of providing for a new circuit with its necessary officers except by a legislative enactment for that purpose. New circuits may therefore be arranged and the salaries of its officers fixed according to the legislative opinion at the time of the public necessity for which provision and relief is to be made. In our opinion the statute creating the Fifteenth circuit, as for the objection here taken to it, evidences in all its parts a valid exercise of the legislative power. Ensley v. Simpson, 52 So. 61.

Petitioner seems to contend that so much of the act as fixes his salary at $1,800 was repealed by later enactments. The adoption of the Code of 1907 did not have that effect because local laws are expressly saved by section 10 of that Code. Nor did the act of March 6th. Neither expressly nor by any sort of implication did that act deal with the subject of salaries. The bill to create the Fifteenth circuit originated in the Senate. In the House it was amended and as amended passed. Upon its return to the Senate the House amendment was concurred in. It was...