Connor v. State on Information of Boutwell

• Decision Date: 23 May 1963
• Docket Number: 6 Div. 992
• Citation: 275 Ala. 230,153 So.2d 787
• Parties: Theophilus Eugene CONNOR et al. v. STATE of Alabama on Information of Albert BOUTWELL et al.
• Court: Alabama Supreme Court

Page 787

153 So.2d 787

275 Ala. 230

Theophilus Eugene CONNOR et al. v. STATE of Alabama on Information of Albert BOUTWELL et al.

6 Div. 992.

Supreme Court of Alabama.

May 23, 1963.

Reid B. Barnes and S. Palmer Keith, Jr., Birmingham, for appellants.

John S. Foster and Graham, Bibb, Wingo & Foster, Birmingham, for appellees.

GOODWYN, Justice.

Appellants, respondents below, were elected in 1961 to a four-year term as the three members of the Birmingham City Commission. Appellees, petitioners below, were elected on April 2, 1963, as Mayor and Councilmen of the City of Birmingham and took their oaths of office as such on April 15, 1963. This quo warranto proceeding, a sequel to the declaratory judgment proceeding in Reid v. City of Birmingham, Ala.Sup., 150 So.2d 735, was brought for the purpose of determining when the Mayor and Councilmen take office.

At an election held on November 6, 1962, pursuant to the provisions of Act No. 434, appvd. Sept. 9, 1955, Acts 1955, Vol. II, p. 980, as amended by Act No. 1029, appvd. Sept. 9, 1961, Acts 1961, Vol. II, p. 1615, the voters of Birmingham chose the Mayor-Council form of government for the City in place of the existing Commission form of government. (Another choice on the ballot was the Council-Manager form provided for by Act No. 518, appvd. Sept. 3, 1953, Acts 1953, Vol. I, p. 652, as amended by Act No. 1028, appvd. Sept. 9, 1961, Acts 1961, Vol. II, p. 1612.) Thereupon, pursuant to the provisions of Act No. 452, appvd. Sept. 9, 1955, Acts 1955, Vol. II, p. 1004, as amended by Act No. 1030, appvd. Sept. 9, 1961, Acts 1961, Vol. II, p. 1616, an election of a Mayor and Councilmen was called for March 5, 1963, with a runoff election to be held on April 2, 1963. As already noted, the Mayor and Councilmen were elected at the runoff election on April 2, 1963. Prior to the holding of those elections, a declaratory judgment proceeding was instituted in the circuit court of Jefferson County to determine the validity of the election held on November 6, 1962, which would have the effect also of determining the validity of the elections to be held on March 5 and April 2, 1963. The trial court held the election of November 6, 1962, to be valid and we affirmed. Reid v. City of Birmingham, Ala.Sup., 150 So.2d 735, supra. Left unanswered in that case, because not properly presented, was the question of when the newly elected officials take office. As already noted, the proceeding now before us was brought to determine that question. The trial court held the Mayor and Councilmen to be entitled to assume their respective offices, and the three City Commissioners were 'prohibited from further use or usurpation or intrusion in purporting to act as Commissioners of the City of Birmingham.'

Our conclusion is that the judgment of the trial court is due to be affirmed.

The Commissioners contend that, under the provisions of Act No. 71, appvd. June 18, 1959, Acts 1959, Vol. I, p. 477, they are entitled to hold their offices until October 1, 1965. Act No. 71 provides as follows:

'AN ACT

'Relating to the effective date for change from the mayor-council form of municipal government to the commission form of municipal government where such change has been directed by vote of the municipal electors, and relating to the effective date for change from the commission form of government to the mayor-council form of government where such has been directed by vote of the municipal electors.

'Be It Enacted by the Legislature of Alabama:

'Section 1. That no change from the mayor-council form of municipal government to the commission form of municipal government hereafter directed by vote of the electors of any municipality in this state shall become effective until October first of the general municipal election year next following the election at which such change is voted. No change from the commission form of municipal government to the mayor-council form of municipal government hereafter directed by vote of the electors of any municipality in this state shall become effective until October first of the general municipal election year next following the election at which such change is voted. The term of any commissioner which might expire before such date is hereby extended until such date when the form of government changes.

'Section 2. This act shall become effective upon its approval by the Governor or its otherwise becoming a law.'

The Mayor and Councilmen, on the other hand, contend that Act No. 452, as amended, supra, controls as to the time for their taking office, viz.: On April 15, 1963, the date they took their oaths of office. Act No. 452 provides for their taking office 'on the second Monday following the date the election of all nine councilmen is completed,' that is, the second Monday following the April 2, 1963, runoff election, viz.: April 15, 1963.

The problem presented is whether it was intended by Act No. 71, a general law, to change the time for taking office provided for in Act No. 452, as amended, a general law of local application. As originally enacted in 1955, Act No. 452 applied to all cities 'having a population of more than 200,000 according to the last or any succeeding Federal or municipal census.' Birmingham was the only city coming within that population classification. The 1961 amendment of Act No. 452 (Act No. 1030, supra) changed the population classification to 'more than 300,000.' According to the 1960 Federal census, the City of Mobile had grown to a population of more than 200,000 (but not as much as 300,000), thus bringing it within the classification prescribed by original Act No. 452. Birmingham is the only city coming within the higher classification prescribed by amendatory Act No. 1030.

Although appellees, in their petition, challenged the constitutionality of Act No. 71, no specific ruling on the question was made by the trial court. Aside from that, no question as to the Act's constitutionality is raised on this appeal.

The holding of the trial court is based on the following statement, taken from the trial court's opinion accompanying its judgment, viz.:

'* * * Do the provisions of Act No. 71, enacted in 1959, in any way supersede or repeal the provisions of Act No. 434 and Act No. 452 of 1955, both of which affect a limited territory although general in form? It should be noted that Act No. 71 contains no general repealer clause. Generally speaking, the repeal of a statute by implication is not favored. Furthermore, a General Law will not repeal by implication a local law, although it be in form a General Law. Acts relating to municipalities on a population basis, applicable at time of passage to a limited territory, are considered local laws (Tucker vs. McLendon, 210 Ala. 562 ). It is the judgment of this Court that it was not the intent of the Legislature in the enactment of Act No. 71 to repeal or amend any provision of Acts No. 434 and 452. It follows that Act No. 71 in no way extends the term of office of the respondents. * * *'

The foregoing finds support in our cases.

It is an established principle, adhered to in this jurisdiction, that a general law will not repeal by implication a local law--a law affecting a limited territory--although in form a general law, unless there is a mainifestation of a different intent to be found in the statute. Thompson v. City of Birmingham, 217 Ala. 491, 494, 117 So. 406; Tucker v. McLendon, 210 Ala. 562, 565, 98 So. 797, supra; Board of Revenue v. Johnson, 200 Ala. 533, 534, 76 So. 859. And, for purposes of construction, an Act based on a population classification, applicable at the time of passage to a limited area, is to be considered a local law, although in form a general law. Tucker v. McLendon, supra; Board of Revenue v. Johnson, supra.

There being no express repeal of the provisions of Act No. 452, the question is whether Act No. 71 has impliedly repealed the provisions of Act No. 452 prescribing the time when the newly elected Mayor and Councilmen take office.

In 50 Am.Jur., Statutes, §§ 561 and 564, are the following statements of principles applicable to the case before us, viz.:

' § 561.--Repeal by Implication.--It has been broadly stated that the rule as to repeals implied from repugnancy of provisions applies as well between a general and a special or local act as between two general ones. As a general rule, however, general or broad statutory provisions do not control, modify, limit, affect, or interfere with special or specific provisions. To the contrary, to the extent of any irreconcilable conflict, the special or specific provision modifies, qualifies, limits, restricts, excludes, supersedes, controls, and prevails over the general or broad provision, which accordingly must yield to the special or specific provision, and operate only upon such cases as are not included therein. The special or specific act and the general or broad law stand together, the one as the law of a particular case, and the other as the general rule. Hence, the special or specific provision is often referred to as an exception to the general or broad provision. These rules prevail where there isa repugnancy between the two acts, and no manifestation of a different intent to be found in the statute.'

' § 564.--Repeal of Special or Specific by General or Broad Statute.--There is no rule which prohibits the repeal by implication of a special or specific act by a general or broad one. The question is always one of legislative intention, and the special or specific act must yield to the later general or broad act, where there is a manifest legislative intent that the general act shall be of universal application notwithstanding the prior special or specific act. It is, however, equally true that the policy against implied repeals has peculiar and special force when the conflicting provisions, which are thought to work a repeal, are contained in a special or specific act and a later general or broad...