Ex parte Ashton

• Citation: 231 Ala. 497,165 So. 773
• Decision Date: 30 January 1936
• Docket Number: 6 Div. 876
• Parties: Ex parte ASHTON.
• Court: Supreme Court of Alabama

165 So. 773

231 Ala. 497

Ex parte ASHTON.

6 Div. 876

Supreme Court of Alabama

January 30, 1936

Original proceeding by Jack E. Ashton for a writ of mandamus to J.F Thompson, as Judge of the Circuit Court, Jefferson County.

Writ denied.

Frank L. Parsons and John W. Altman, both of Birmingham, for petitioner.

Lange Simpson & Brantley, of Birmingham, for respondent.

THOMAS Justice.

This is a petition for mandamus to compel the vacation of an order of consolidation of pending causes growing out of a motorcar collision on the public highway.

The circuit judge so ordering acted under the provisions of section 1 of the act of September 13, 1935 (Gen.Acts 1935, p 1010), which reads as follows:

"An Act To authorize the Circuit Courts in Counties having a population of 300,000 or more, according to the last or any future Federal census, to make such orders and rules concerning proceedings in causes of like nature, or relative to the same question, as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and to authorize said courts to consolidate said causes when it appears reasonable to do so:

"Be it Enacted by the Legislature of Alabama:

"Section 1: When causes of like nature or relative to the same question are pending before the Circuit Court in the counties having a population of 300,000 or more according to the last or any future Federal census, the court may make such orders and rules concerning proceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so.

"Approved September 13th, 1935."

The uncontroverted answer of the judge contains the following: "That upon a final hearing of said motion due proof was made by the pleadings and interrogatories and answers thereto in both cases that the matters and things complained of in said suits were of like nature or relative to the same question. The respondent further shows unto the court that due proof was made by the introduction in evidence of the plaintiff's interrogatories and the defendants' answers thereto in the case of Jack E. Ashton vs. H.J. Heinz Company, a corporation, and R.M. Shanks, #90143, that the only theory on which plaintiff could recover in said suit against the defendant, H.J. Heinz Company, a corporation, would be on the theory of respondeat superior. The respondent further shows unto the Court that according to the defendants' answers in said case they denied that the defendant, R.M. Shanks, was acting within the line and scope of his employment at the time of the accident. *** that in the case of Robert M. Shanks vs. Jack E. Ashton, doing business as Dad's Oatmeal Cookie Company and C.L. Hollingsworth, #90298, due proof was made by the introduction in evidence of the plaintiff's interrogatories and the defendants' answers thereto; that the only theory on which the plaintiff could recover against the defendant, Jack E. Ashton, would be on the theory of respondeat superior. It was further shown unto the Court that C.L. Hollingsworth was driving the truck in which the defendant, Jack E. Ashton, was riding on said occasion, and that Jack E. Ashton owned said truck."

The respective pleadings are made a part of the answer as exhibits, and illustrate the same. Grimsley v. First Ave. Coal & Lumber Co., 217 Ala. 159, 115 So. 90.

The primary question presented and urged is the constitutionality vel non of the act in question, and, if constitutional, whether the order was within the statute and a sound exercise of judicial discretion?

It is established that one assailing a statute has the burden, under the rule that applies, of showing that the statute is offensive to organic law. The rule of the cases is thus stated: "(1) That constitutional provisions designed for the 'security of the elementary rights of life, liberty, and property should be construed liberally in favor of the citizen;' *** (2) that, where the legislative act in question prescribes a 'rule of purely governmental policy, or relates merely to the conduct and administration of public affairs,' it will not be declared unconstitutional unless it is repugnant to the organic law 'beyond a reasonable doubt.' " Williams, Judge, v. Schwarz, 197 Ala. 40, 47, 72 So. 330, 333, Ann.Cas1918D, 869 et seq.

As to the instant statute, the burden is on the petitioner attacking it for unconstitutionality to show beyond a reasonable doubt that it was contrary to organic law.

It is further declared that any reasonable presumption will be indulged in favor of its constitutionality to prevent striking down a statute. Jefferson County v. Busby, 226 Ala. 293, 148 So. 411; State ex rel. Dally v. Woodall et al., 225 Ala. 178, 142 So. 838; Wages v. State, 225 Ala. 2, 141 So. 707.

We are of opinion that this act passed in good faith and is not arbitrary. It is based upon the population classification in question, and is a general law within the meaning of section 110 of the Constitution. The rule that obtains is given expression in Jefferson County v. Busby, supra, and authorities cited; Wages v. State, supra; State ex rel. Dally v. Woodall et al., supra; State ex rel. Shirley v. Lutz et al., 226 Ala. 497, 147 So. 429; Steber v. State, 229 Ala. 88, 155 So. 708; Bell v. Jones, Judge, 223 Ala. 497, 136 So. 826.

In the instant pleading it is shown that on February 19, 1935, petitioner, Jack E. Ashton, filed his suit in the circuit court of Jefferson county, numbered 90143, making H.J. Heinz Company, a corporation, and R.M. Shanks defendants, and in which he sought damages for personal injuries and loss by damages to his automobile-delivery truck caused by the alleged negligent operation by defendant Shanks of an automobile in and about the business and employment of the defendant corporation, and as its agent, acting within the line and scope of his employment, negligently drove the automobile against the motor vehicle in which plaintiff was riding, and as a proximate result of the negligence alleged, the damages and injuries occurred for which suit was brought. It is further alleged in the petition before us, that on September 25, 1935, this cause was set for trial in the circuit court on December 3, 1935.

It is further alleged in Ashton's petition that on March 2, 1935, Robert M. Shanks (a defendant in the aforementioned suit) brought his suit in the circuit court, numbered 90298, making Jack E. Ashton, doing business as Dad's Oatmeal Cookie Company, and C.L. Hollingsworth, defendants, alleging negligent operation of a motor vehicle by said Hollingsworth as the servant, agent, or employee of said Ashton, doing business as aforesaid, causing injury at the same time and place on the public highway (indicated in the pleadings in the two suits); averred the agency and negligence of Hollingsworth proximately causing the damages for which Shanks sued. This cause was, on the same date and setting as in Ashton's suit against Shanks and the Heinz Company, duly set for trial on December 9, 1935.

It was shown at the hearing of the defendants' motion that both cases resulted from one and the same collision; that the causes were of like nature and related to the same facts of collision on the public highway in another county.

In the suit of Ashton versus Heinz Company, a corporation, and Shanks, attorneys for the defendants moved the court for consolidation of the two pending causes, on the grounds that they were of "like nature and related to the same question, and that in justice, economy, and expedition of work of the court (in) said cases should be consolidated as provided by the laws of Alabama." There was a due hearing on this motion, and the following order was made granting and ordering consolidation:

"11/19/35 Motion granted and cases numbered are consolidated and consolidated with No. 90143 and Plaintiff excepts.

"Thompson, J."

On December 2, 1935, Ashton filed his petition in this court, praying for writ of mandamus to require the vacation of such order of consolidation, and in response thereto the respondent judge duly appeared and contested the same by demurrer and answer. The legal questions argued are duly presented by the petition for mandamus, challenging the propriety of the order of consolidation. Ex parte Green, Superintendent of Banks, 221 Ala. 415, 129 So. 69; Ex parte Green, Superintendent of Banks, 221 Ala. 298, 129 So. 72; Fogleman et al. v. National Surety Co. et al., 222 Ala. 265, 132 So. 317; Ex parte Fletcher, 225 Ala. 139, 142 So. 30; Keith & Wilkinson v. Forsythe, 227 Ala. 555, 151 So. 60.

The statute under which the court acted being held free of the constitutional objection urged, the questions of fact presented are whether the action of the court was within the terms of the statute, and whether there was an abuse of the discretionary power declared or reposed in the trial courts of Jefferson county.

The act of September 13, 1935, is in exact terms as the federal statute, except that the federal statute is, by its terms, applied only to the United States and its territories. The purposes of the acts are the same. The Alabama statute has application at the present time only in Jefferson county. It is urged that if the statute is sustained, the facts do not justify the consolidation, and that in this order there was a misapplication of the power conferred and an abuse of judicial discretion.

The general rule authorizing and applied in ordering consolidation of causes at law is, that the different actions shall be pending in the same court, at the same time, between the same parties, and involving substantially the same subject-matter, issues, and...