Dudley v. Fitzpatrick

• Decision Date: 18 January 1905
• Citation: 39 So. 384,143 Ala. 162
• Parties: DUDLEY v. FITZPATRICK.
• Court: Alabama Supreme Court

39 So. 384

143 Ala. 162

DUDLEY v. FITZPATRICK.

Supreme Court of Alabama

January 18, 1905

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Application by M. H. Fitzpatrick for writ of mandamus to E. A. Dudley. A peremptory writ was issued, and respondent appeals. Affirmed.

Pinkney Scott and W. K. Smith, for appellant.

Cabaniss & Weakley and S. S. Pains, for appellee.

DOWDELL J.

This is a proceeding by mandamus to compel the removal of a civil cause pending in the city court of Bessemer, Jefferson county, to the circuit court of said county. The petition is filed under the act approved September 26, 1903 (Acts 1903 p. 369). The petition was demurred to, and, the demurrer being overruled by the court, answer was filed, and upon the hearing of the petition and answer a peremptory writ of mandamus was awarded. The validity of the act on which the petition for a mandamus is based is brought into question both by the demurrer and answer, and the grounds stated are the same in both.

The main proposition, and that which is most strenuously insisted on in argument, is whether there was a compliance with the requirements of section 106 of the Constitution as to notice and proof of notice in the enactment of the statute. Section 106 of the Constitution reads as follows: "No special private or local law shall be passed on any subject not enumerated in section 104 of this Constitution, except in reference to fixing the time of holding courts, unless notice of the intention to apply therefor shall have been published, without cost to the state, in the county or counties where the matter or thing to be affected may be situated, which notice shall state the substance of the proposed law and be published at least once a week for four consecutive weeks in some newspaper published in such county or counties, or if there is no newspaper published therein, then by posting the said notice for four consecutive weeks at five different places in the county or counties prior to the introduction of the bill; and proof by affidavit that such notice has been given shall be exhibited to each house of the Legislature, and such proof spread upon the journal. The court 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." That the act in question comes within the class of legislation denominated "local law," under the Constitution, cannot be doubted under the decision of Wallace v. Board of Revenue of Jefferson County et al. (Ala.) 37 So. 321. Conceding, then, that the act is a local law, it is insisted in the first place that the published notice given was insufficient, in that it failed to state the substance of the proposed law; and this is the principal question in the case.

Before proceeding with the discussion of this proposition, other contentions of appellant in respect to what the journals of the two houses show as to proof of notice may be disposed of by a statement of what is shown by the journals. The bill in question was Senate Bill No. 332, and was introduced in the Senate September 1, 1903, under the head of "Introduction of Bills," Senate Journal, p. 715; and the following appears on page 735:

"By Mr. Morrow, with notice and proof of publication, as follows:

" 'The State of Alabama, Jefferson County--Personally appeared before me, the undersigned authority, A. C. Jenkins, who, being by me duly sworn, deposes and says, on oath, that he is the manager of the circulating department of the Birmingham Ledger; that the Birmingham Ledger is a newspaper published in the city of Birmingham, Jefferson county, Alabama; and affiant further says on oath that the following printed notice pasted to this affidavit was published once a week for four consecutive weeks in said Birmingham Ledger.

" '[Signed]

A. C. Jenkins,

"Manager Circulation.

" 'Subscribed and sworn to before me, this the 31st day of August, 1903.

" 'Frank W. Smith, Notary Public.

" 'Notice.--Pursuant to constitutional requirement, notice is hereby given that a bill will be introduced at the present session of the Legislature of Alabama, for the purpose of allowing the removal of all civil suits pending in the city court of Bessemer, at the option of either party, and of allowing the removal of all civil suits...