Cooper v. State

Decision Date12 January 1933
Docket Number6 Div. 280.
Citation226 Ala. 288,147 So. 432
PartiesCOOPER v. STATE ex rel. HAWKINS.
CourtAlabama Supreme Court

Rehearing Denied March 9, 1933.

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Quo warranto proceeding by the State of Alabama, on the relation of Sam W. Hawkins, against L. B. Cooper. From a judgment for relator, respondent appeals.

Affirmed.

Cabaniss & Johnston and K. E. Cooper, all of Birmingham, for appellant.

Judge &amp Nesmith, of Birmingham, for appellee.

KNIGHT Justice.

Quo warranto brought by the state of Alabama on relation of Sam W. Hawkins and Sam W. Hawkins against L. B. Cooper, seeking to oust the latter from the office of chairman of the board of registrars of Jefferson county.

This proceeding presents for determination by this court the constitutionality of the act, approved October 31, 1932 amendatory of section 370 of the Code of Alabama, which provides for registration of electors in the several counties of the state; the appointment of boards of registrars, prescribing their qualifications, and the designation of the chairman for each of said boards. By this section, a board of registrars, in each county, consisting of three members is provided for, and the appointment of the members of the boards is confided to the Governor, state auditor, and commissioner of agriculture and industries, acting as "a board of appointment." By the terms of section 370, it is provided: "One of said members shall be designated by the board of appointment as chairman of the board of registrars for each county."

The amendatory act in question, the constitutionality of which is assailed by the respondent Cooper, adds to, and at the end of, section 370 the following words:

"Provided, however, that in counties of over one hundred and fifty thousand population, according to the last or any subsequent federal census, that the Governor shall appoint the chairman of the Board of Registrars, who shall serve for a term of four years and shall be removable only by impeachment for the same causes and in the same manner as county officers are impeached."
"Upon the passage of this Act, the Governor shall designate and appoint one of the members of each of said boards in such counties as chairman of the Board of Registrars, who shall forthwith qualify and take office as chairman and who shall hold such office until the expiration of his term as herein defined."

The constitutionality of the act is assailed upon more than one ground, as hereinafter pointed out. It is insisted by appellant that the act is an unadvertised local law, attempted to be passed in violation of section 106 of the Constitution, "because (a) it designates rather than classifies and (b) it fails to show any reasonable relationship between population class and purpose of Act." And "2. The Act purports to oust from office a county official having a fixed term of office, before the expiration of his term of office, in violation of section 175 of the Constitution."

We will first address ourselves to a consideration of the question of whether the act presents a case of designation rather than of classification reasonably related to the purpose to be effected, and substantial difference in population which forms the basis thereof, made in good faith and not arbitrarily.

In considering the above question, we deem it not amiss to call attention to the fact that in 1927 (Laws 1927, p. 277) the Legislature saw proper to require the chairmen of the boards of registrars in counties having a population of more than 150,000, according to the last or any succeeding federal census, to perform all the duties, and to exercise all the power and authority, required of judges of probate by article 3, chapter 19 (§ 370 et seq.) of the Code of Alabama. This act of 1927 in terms and effect served to strip judges of probate of all duties, power, and authority over the registration of electors in such counties, and which were theretofore, in said article, required of them.

So far as we have been advised, the constitutionality of the act of 1927 has not been challenged upon the ground that it was a mere designation and not a reasonable classification. Certain it is that this respondent, as the chairman of the board of registrars for Jefferson county, since his appointment or designation as chairman of said board, has recognized said act as a valid and constitutional enactment, and has continued to exercise the power and authority conferred upon him by said act, as such chairman. Doubtless, the members of the Legislature were of the opinion that, in such large counties, the duties required of judges of probate, with respect to the registration of electors, were too numerous, and onerous, to be given due and proper consideration in view of the many other duties enjoined upon them in such counties, and therefore it was deemed wise to require that the chairmen of the boards of registrars should perform those duties in counties with a population in excess of 150,000.

This court, at an early date after the adoption of our present Constitution, committed itself, in line with the holding in other jurisdictions where similar constitutional provisions with reference to the enactment of general and local laws prevail, to the following test by which the character of the act, whether general or local, should be determined: "The effect of all of our decisions, in short, has been that where there is a substantial difference in population, and the classification is made in good faith, reasonably related to the purpose to be effected and to the difference in population which forms the basis thereof, and not merely arbitrary, it is a general law, although at the time it may be applicable to only one political subdivision of the state; but that if the classification bears no reasonable relation to the difference in population, upon which it rests, in view of the purpose to be effected by such legislation, and clearly shows it was merely fixed arbitrarily, guised as a general law, and, in fact, is a local law, it is then in plain violation of the Constitution and cannot be upheld." Reynolds v. Collier, 204 Ala. 38, 85 So. 465, 467; Vaughan, Probate Judge, v. State ex rel. Dawson, 212 Ala. 258, 102 So. 222; State v. Gullatt, 210 Ala. 452, 98 So. 373; State v. Weakley, 153 Ala. 648, 45 So. 175; Mobile County v. Byrne, 218 Ala. 5, 117 So. 83; Kearley v. State ex rel. Hamilton, 223 Ala. 548, 137 So. 424; Wages v. State (Ala. App.) 141 So. 709, 710.

In view of the fact that much is said in brief of counsel for appellant with reference to the motives and good faith of the Legislature in the passage of the act in question, we feel that it is not amiss to say here again that this court cannot look beyond the act itself for motive or purpose. Nor, in a proceeding of this kind, can we put on trial the Legislature of Alabama, a co-ordinate branch of the government, in order to determine whether the author of the measure was actuated by ulterior purposes. State ex rel. Russum v. County Comm. of Jefferson County et al., 224 Ala. 229, 139 So. 243; State ex rel. Camp v. Herzberg, 224 Ala. 636, 141 So. 553; State ex rel. Ward v. Henry, 224 Ala. 224, 139 So. 278.

In applying the rules to determine whether an act is general or local, it is our duty not to construe a law as local when it is so worded as to be interpreted as a general one, in order to save its constitutionality, and this results from the rule that, before a statute is stricken as unconstitutional, the court must be convinced beyond all reasonable doubt of its unconstitutionality. State v. Gullatt, supra; Reynolds v. Collier, supra; State v. Merrill, 218 Ala. 149, 117 So. 473; Ward v. State ex rel. Lea, 224 Ala. 242, 139 So. 416.

The only changes in section 370 of the Code wrought by the act in question are: (1) The governor is given the power to appoint the chairmen of the boards of registrars in counties of over 150,000 population; (2) such chairmen when appointed shall have a fixed term of four years; (3) they shall be removable only by impeachment for the same causes and in the same manner as county officers are impeached; and (4) upon the passage of the act, the governor is required to designate and appoint one of the members of each of said boards, in each of said counties, as chairman of the board of registrars, who shall forthwith qualify and take office as chairman, and who shall hold such office until the expiration of his term as defined in the act.

No notice of the intention to apply to the Legislature for the passage of the act was published, and, of course, if it is a local law it is void for the failure to comply with the mandatory provisions of section 106 of the Constitution.

As heretofore pointed out, the Legislature of 1927 transferred all the duties required by article 3, chapter 19 of the Code, of judges of probate to the chairmen of the boards of registrars, in all counties of the state having a population of more than 150,000; but in all counties having a population less than 150,000, the duties, powers, and authority conferred upon judges of probate by article 3, chapter 19 of the Code, still remain with such judges.

We can see many reasons why in counties having a population of more than 150,000 the duties ordinarily required of judges of probate, with respect to the registration laws of the state should be transferred to some other officer who is not charged with other duties, and who can give his full attention to the performance of those duties. No doubt the magnitude, importance, and volume of this work appealed to the Legislature as furnishing reasonable grounds for the transfer of those duties to the chairmen of the boards, and...

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