Dunn v. Dean, 3 Div. 239

• Court: Supreme Court of Alabama
• Writing for the Court: McCLELLAN, J. McCLELLAN, J.
• Citation: 71 So. 709,196 Ala. 486
• Parties: DUNN v. DEAN, Judge of Probate.
• Docket Number: 3 Div. 239
• Decision Date: 20 April 1916

71 So. 709

196 Ala. 486

DUNN
v.
DEAN, Judge of Probate.

3 Div. 239

Supreme Court of Alabama

April 20, 1916

Appeal from Circuit Court, Conecuh County; A.E. Gamble, Judge.

Mandamus by Henry W. Dunn against F.J. Dean, Judge of Probate, to compel respondent to receive relator's declaration and place his name upon the ballot of his party to be voted for the office of county commissioner. From a judgment denying the writ, relator appeals. Reversed and remanded. [71 So. 711]

Hamilton & Stallworth, of Evergreen, and D.M. Powell, of Greenville, for appellant.

E.E. Newton, of Evergreen, for appellee.

McCLELLAN, J.

In an appropriate way the appellant sought to qualify as a candidate for the Democratic nomination, in the primaries to be held on the 9th day of May, 1916, for "county commissioner of Conecuh county." His declaration was refused receipt by the judge of probate; and this proceeding seeks the writ of mandamus to compel official action by that officer, to the end that appellant may have the ballot of his party on his aspiration. The judge of probate declined to receive appellant's declaration, for the reason that the office to the nomination for which he aspired had been abolished by a local act approved September 7, 1915 (Local Acts 1915, pp. 293-296). The appellant insists that the local act noted is unconstitutional and void, and is, hence, no valid obstacle to the action he sought the judge of probate to take in his declaration of candidacy for county commissioner. The circuit judge denied the petition for the writ, and this appeal is for a review of his ruling.

The local act under consideration has this title:

"To establish a board of revenue for Conecuh county, to provide for their election and prescribe their powers and duties, to divide the county of Conecuh into five districts and abolish the court of county commissioners for Conecuh county."

Section 1 establishes a board of revenue for Conecuh county. Section 2 divides the county into five defined districts. Section 3 provides for the election, at the general election in 1916, of one member of the board for, and by the qualified electors in, each of the five districts, fixes the qualifications for incumbents, and apportions the terms so that three of the members first elected shall hold office for two years and two of them for four years, and thereafter that their successors shall be elected for terms of four years. Section 4 provides for regular and special sessions of the board. Section 5 requires the members of the board to elect a president thereof. Section 6 makes provision for filling vacancies on the board. Sections 7, 8, 9, 10, and 12 prescribe the authority, power, and jurisdiction conferred on the board. Section 11 provides for the signature of county warrants by the president of the board, and for other services by the presiding officer, and prescribes that:

"He shall receive a reasonable compensation not exceeding $3.00 per day nor the amount of $150.00 per annum."

Section 13 makes further provision for services by the president, and allows him "fifteen cents per one hundred words for recording the proceedings of the said board," and exacts that the recording be done within a fixed period after each meeting. Section 14 provides that, when acting judicially, the board is a court of record. Section 15 provides for the furnishing of information to the board by the clerks of courts in the county that will serve to acquaint the body with fines and forfeitures taken during the term by the courts and judgments entered during the terms for the use of the county. Section 16 requires the publication, quarterly, by the body of statements of the receipts and disbursements of county funds, and for the vacation of "their offices" if the board fails or refuses to publish the statements required, and for the filling by the Governor of the vacancies thus occasioned when the prescribed certificate of the fact is filed with the Governor. Section 17 provides for the compensation and mileage of members. Section 18 requires the body's sessions to be held at the county seat. Section 19 abolishes the commissioners' court of that county at the expiration of the terms of the present commissioners. Section 20 is the usual repealing clause.

The several grounds on which appellant rests his contention that the local act is void will be indicated in the opinion. The sufficiency of the title before quoted, as for any supposed violation of section 45 of the Constitution, must be pronounced in view of the following authorities: State v. Teasley, 69 So. 723; Thomas v. Gunter, 170 Ala. 165, 54 So. 283; Griffin v. Drennen, 145 Ala. 128, 40 So. 1016; Sheffield Co. v. Pool, 169 Ala. 420, 53 So. 1027.

The local act under review was published in June, 1915, in a newspaper in Conecuh county. The caption of the notice so published read:

"Notice of Local Law. Notice is hereby given that at the next session of the Legislature of Alabama the following bill, in substance, will be introduced."

The Legislature of 1915 convened in January, 1915, and later, but before the month of June, 1915, recessed until during July, 1915. Section 106 of the Constitution requires the publication of notice of intention to seek the enactment of a local law, its substance being set forth in the notice. It is urged against this local act that the use, in the published notice alone, of the words "next session of the Legislature of Alabama" denoted a purpose to move for the enactment of the substance of the local legislation set forth in the notice at the session of the Legislature to convene in January, 1919, that being, it is urged, the next session of the Legislature of the state. There is no sound basis for such an insistence. The whole publication must be considered in determining the intent thereof. It is manifest from the body of the proposed law as published that the intent of the movers for the proposed legislation embraced provisions of law operative during the year 1916, long previous to the convention of the Legislature in January, 1919. The words "next session" in the caption of the published notice are, in necessary relation to those words, only susceptible of this meaning: During "next sitting" of [71 So. 712] the Legislature after the prescription of section 106 as to the period of publication has been complied with.

It is urged that this local act is void for that it violates these provisions of section 105 of the Constitution:

"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; *** and the courts and not the Legislature, shall judge as to whether the matter of said law is provided for by a general law. ***"

By way of interpretation and construction of section 105 this court has made a number of pronouncements. In view of the objections made against this local law, based upon the quoted provisions of section 105 of the Constitution, it is desirable to bring together these expressions of this court defining the purpose and effect of this section of the Constitution. In Sisk v. Cargile, 138 Ala. 164, 171, 172, 35 So. 114, 116, it was said:

"Section 104 of the Constitution prohibits the Legislature from passing a special or local law in any one of 31 specified instances. A local law, as here referred to, is defined, under another section--section 110--to be one which applies to any subdivision or subdivisions of the state, less than the whole, and a special or private law is one which applies to an individual, association, or corporation. There are an indefinite number of local, private, and special interests, impossible to be anticipated, and which the framers of the Constitution did not attempt to enumerate. They did provide by section 105, that 'No special, private or local law, except the 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.' In this connection it may be stated that there is no general law in Alabama authorizing the levy of a tax for the payment of debts incurred for road purposes, and no relief can be had in the courts, since the levy of a tax is a legislative power. They also provided by section 109 that: 'The Legislature shall pass general laws under which local and private interests shall be provided for and protected.' When, however, the relief in this class of undefined local, special, and private interests is not provided for by general laws, and the Legislature has failed to pass such laws, there is nothing in the Constitution which is a limitation on the right of the Legislature to pass special, private, or local laws except in one of the 31 specified instances named in said section 104. In these instances, the Legislature must pass general statutes for relief, or none can be had, unless the same is already provided for by a general law. Section 109 was intended to impose a duty on the Legislature by the enactment of general laws to that end, to protect local, private, and special interests, but it is not, as in the 31 enumerated instances in section 104, a limitation on its power to pass special laws to this end. The power of the Legislature to pass laws of a private, local, or special interest was unlimited; and, outside or beyond these 31 specified instances, the Legislature has the same power it had before the adoption of the

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