Butler v. Guaranty Sav. & Loan Ass'n

• Decision Date: 17 May 1945
• Docket Number: 6 Div. 317.
• Citation: 247 Ala. 4,22 So.2d 328
• Court: Alabama Supreme Court
• Parties: BUTLER v. GUARANTY SAVINGS & LOAN ASS'N.

22 So.2d 328

247 Ala. 4

BUTLER v. GUARANTY SAVINGS & LOAN ASS'N.

6 Div. 317.

Supreme Court of Alabama

May 17, 1945

M. B Grace, of Birmingham, for appellant.

Bowers Dixon & Dunn, of Birmingham, for appellee.

From the bill it appears that the application for purchase of the stock was made and accepted in January, 1929, and that the alleged fraud was discovered in October, 1939. The bill was filed April 28, 1943.

The following are grounds of the demurrer to the bill:

'5. If said theory of the bill is based upon fraud or misrepresentations, then it appears from the face of the bill that it is barred by the statute of limitations of one

year as set forth in the Acts of the Legislature of 1935 page 220 which said act is subsequently re-enacted 1940 Code of Alabama, Title 5, Section 258.

'4. Said bill of complaint shows on its face that the action which complainant seeks to enforce is barred by the statute of limitations as set forth in Act of the Legislature of 1935, page 220, Act approved July 8, 1935, which said Act was re-enacted in 1939, General Acts of the Legislature at page 616, Section 54, and was re-enacted by the 1940 Code of Alabama, Section 258 of Title 5.'

The Act of 1935 (to amend and extend Section 26 of an Act approved April 9, 1931, entitled 'An Act defining building and loan associations', etc.) is in part as follows: '(2) No action, either in tort or contract, or of any nature whatsoever, shall be brought by any person against any Association because of alleged fraud, misrepresentation or deceit in the purchase of or subscription to stock, shares or membership in such Association more than three (3) years after the date of the contract of purchase or subscription, regardless of the time of discovery or the non-discovery of such alleged fraud, misrepresentation or deceit. The foregoing provision shall apply to all actions, whether the alleged fraud, misrepresentation or deceit occurred or the contract was made before or after the passage of this Act; provided, however, that no action shall be barred prior to twelve (12) months after the passage of this Act unless already barred under pre-existing law at the time this Act shall become effective, in which event nothing herein contained shall operate to extend the time for bringing such barred action.'

FOSTER Justice.

The bill in this case in equity alleges fraud by respondent in securing an agreement from complainant for the purchase of stock in defendant, which was an incorporated building and loan association under Alabama law. It seeks a discovery of certain matters; an accounting of transactions occurring over a period of more than ten years; a personal money judgment for the balance found due her; a cancellation of her applications for the purchase of stock; and for general relief.

The trial court sustained a demurrer to the bill reciting that it is based on the ground that it shows on its face that it is barred by the statute of limitations. That ruling is the only question presented on this appeal.

A ground of demurrer raising that contention is No. 5, among those addressed to that aspect of the bill seeking to declare void the applications for the purchase of stock. This ground of demurrer (trans. p. 16) expressly relies upon 'an Act of the Legislature of 1935, p. 220, which said Act is subsequently re-enacted 1940 Code of Alabama, Title 5, section 258'; also a ground of demurrer No. 4 to the bill as a whole (trans. pp. 12-13) which is also in reliance on the same statute, also alleging that 'said Act (referring to that of 1935, supra) was re-enacted in 1939--General Acts of the Legislature at page 616, section 54,--and was re-enacted by the Code of 1940 of Alabama, section 258, of Title 5.' Those grounds of demurrer were reassigned to the bill as amended, which was sustained and the bill dismissed, and from that decree the appeal was taken, and that alone is assigned as error.

The Act of 1935, supra, is under a title which proposed to amend section 26 of an Act of 1931. That title does not indicate what is the nature of the proposed amendment. In order to satisfy section 45 of the Constitution an amendment by reference to the number of a section in an act must be confined to matters which are germane to, suggested by, and supplemental to, the subject of that section. Wood & Pritchard v. McClure, 209 Ala. 523, 96 So. 577; Ex parte Cowert, 92 Ala. 94, 9 So. 225; Kendrick v. State, 218 Ala. 277, 120 So. 142; Board of Revenue v. Jansen, 224 Ala. 240, 139 So. 358; McCoy v. Jefferson County, 232 Ala. 651, 169 So. 304.

Section 26 of the Act of April 9, 1931 (see, General Acts 1931, p. 230) states in capitals its broad subject, to be 'Membership--Withdrawable Fees--Commission for Sale of Shares.' Its substance was confined solely to the amount and regulation of such fees and commissions. There was no reference to a suit for fraud or to any other sort of suit nor to the limitation of such a suit. The amendment under the title we have described changed the amount of the maximum withdrawal fee, which was germane to the subject of section 26, supra, and added details as to suits based on fraud and deceit, or misrepresentation, so as to fix a limitation of three years after the date of the contract, regardless of the time of the discovery of the fraud, and made it applicable when the fraudulent transaction occurred before as well as after the passage of the act, but extended the period by twelve months after its passage, unless already barred under existing law. The matter added to fix a limitation on suits based on fraud is not within the title of the amending act, and it is not germane to any feature of section 26 of the Act of 1931, supra.

But this is thought to be remedied by section 54 of the Act of September 21, 1939 (General Acts 1939, pp. 616, 675), which is also Article XI. That Act is a general revision of all the laws applicable to building and loan associations. Klein v. Jefferson Co. Bldg. & Loan Assn., 239 Ala. 460, 195 So. 593. That section of it repeals all other laws and parts of laws pertaining to building and loan associations, except those enumerated which 'are hereby expressly reenacted'; and 'also (except) an Act entitled' giving the title of the Act of July 8, 1935, supra, to amend section 26, supra (which is) 'is hereby likewise expressly re-enacted.' It is not otherwise re-enacted. And when the Act of September 21, 1939, was carried into the Code of 1940, as sections 211-258, Title 5, it was provided in section 258 that Articles IX, X and XI of the Act are not repealed or affected by the Code, or by being omitted from the Code. So that the Code leaves the Act of July 8, 1935, amending section 26 of the Act of April 9, 1931, in the same status as it existed prior to the adoption of the Code. It does not improve its standing as a valid enactment. It is not a valid enactment, unless section 54 of the Act of September 21, 1939, relieves it of its invalidity because of the violation of section 45 of the Constitution.

The substance of the provisions of section 54, supra, in this regard in merely to leave the Act as it existed unrepealed. It cannot be enacted as a new act in that...