Ex parte Pea River Power Co.

• Decision Date: 06 October 1921
• Docket Number: 3 Div. 536.
• Citation: 91 So. 920,207 Ala. 6
• Parties: EX PARTE PEA RIVER POWER CO. v. PEA RIVER POWER CO. STATE EX REL. ATTORNEY GENERAL
• Court: Alabama Supreme Court

91 So. 920

207 Ala. 6

EX PARTE PEA RIVER POWER CO.

STATE EX REL. ATTORNEY GENERAL v. PEA RIVER POWER CO.

3 Div. 536.

Supreme Court of Alabama

October 6, 1921

Rehearing Denied Nov. 24, 1921.

Certiorari to Court of Appeals.

Petition by the Pea River Power Company, for certiorari to the Court of Appeals to review and revise the judgment of said court reversing and remanding the appeal of State v. Pea River Power Co., 91 So. 921. Writ denied.

Sayre and Gardner, JJ., dissenting.

Steiner, Crum & Weil, of Montgomery, for appellant.

Harwell G. Davis, Atty. Gen., and Thomas J. Judge, Sp. Asst. Atty. Gen., for appellee.

PER CURIAM.

Petition for certiorari denied.

On Rehearing.

PER CURIAM.

It is insisted upon application for rehearing that the exception or exemption in section 12 of the act of 1911 (page 170) is not so separable from or independent of the entire section as to authorize the upholding of said section after elimination of the exception or exemption, and that as the exception or exemption must be stricken as violative of the Constitution the entire section should fall; that section 289 of the act of 1915 (page 486) as considered in the Bank of Elba Case, 91 So. 917, is much broader in evincing a legislative intent to preserve all portions of the act that may not be declared unconstitutional. True, section 289 of the act of 1915 says, "If any section, clause or provision shall be held void or ineffective for any cause, it shall not affect any other clause or provision of this Act"; while section 34 of the Act of 1911 (page 184) provides that-

"Should any court declare any section of this act unconstitutional, it shall not affect the remaining sections, but the same shall remain in full force and effect."

We think that the word "section" as used in section 34 of the act of 1911 does not mean an entire numeral section, but a separate and separable clause, sentence, or provision. In other words, we think that said saving provisions mean practically the same, though couched in different language. City of Montgomery v. Royal Exchange, 5 Ala. App. 318, 59 So. 508.

The application for rehearing is overruled.

ANDERSON, C.J., and McCLELLAN, SOMERVILLE, THOMAS, and MILLER, JJ., concur.

SAYRE and GARDNER, JJ., dissent.