Farmers' Union Warehouse Co. v. McIntosh

• Decision Date: 16 May 1911
• Citation: 1 Ala.App. 407,56 So. 102
• Parties: FARMERS' UNION WAREHOUSE CO. v. MCINTOSH.
• Court: Alabama Court of Appeals

56 So. 102

1 Ala.App. 407

FARMERS' UNION WAREHOUSE CO. v. MCINTOSH.

Court of Appeals of Alabama

May 16, 1911

Appeal from Circuit Court, Franklin County; C. P. Almon, Judge.

Action by J. H. McIntosh against Farmers' Union Warehouse Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Chenault & Chenault, for appellant.

Williams & Jones and B. H. Sargent, for appellee.

WALKER P.J.

When this case was called for trial in the court below the defendant (appellant here) objected to entering upon a trial, on the ground of an absence of authority of law for holding a term of the circuit court of Franklin county at that time, a special term of the court not having been called. The objection was based upon the claim that the act relating to the times of holding the circuit court of that county, approved November 23, 1907 (Loc. Acts Sp. Sess. 1907, p. 32), pursuant to which the court was held is invalid. In support of this objection, it is urged (1) that the act in question was not passed in the manner required by the Constitution; and (2) that, if it was constitutionally passed, it was superseded by the Code of 1907.

The objection touching the manner of passing the act in question rests upon the claim that, relating, as it did, to a subject not designated by the Governor in his proclamation calling the Legislature to meet in special session, it was not passed by "a vote of two-thirds of each house," within the meaning of the requirement to that effect of section 76 of the Constitution of 1901. The fact is brought to the attention of the court that the journal of the House of Representatives (House Journal, Special Session 1907, p. 254) shows that the vote on the final passage of the bill was yeas, 65, nays, 0; and the claim is that that vote was insufficient for the constitutional passage of the bill, in that 65 was less than two-thirds of the membership of the House, which was composed of 105 members. To sustain this objection it is necessary to reach the conclusion that the words "each house," as used in section 76 of the Constitution, referred to the entire membership of each house, and that at a special session of the Legislature a bill on a subject other than one designated in the proclamation of the Governor calling such session cannot become a law except by a vote of two-thirds of the members entitled to participate in the proceedings of each house.

The court is not advised of any authoritative ruling in this state upon the question thus presented. Similar questions several times have been passed upon in other jurisdictions. Zeiler v. Central Ry. Co., 84 Md. 304, 35 A. 932, 34 L. R. A. 469; State v. McBride, 4 Mo. 303, 29 Am. Dec. 636; Southworth v. Palmyra & J. R. Co., 2 Mich. 287; Warnock v. Lafayette, 4 La. Ann. 419; Green v. Willer, 32 Miss. 650; Morton v. Comptroller Gen., 4 S. C. 430, 463. The accepted rule on the subject is thus stated: "For the vote required in the passage of any particular law the reader is referred to the Constitution of his state. A simple majority of a quorum is sufficient, unless the Constitution establishes some other rule; and where, by the Constitution, a two-thirds or three-fourths vote is made essential to the passage of any particular class of bills, two-thirds or three-fourths of a quorum will be understood, unless the terms employed clearly indicate that this proportion of all the members, or of all those elected, is intended." Cooley's Constitutional Limitations (7th Ed.) 201. In construing a provision of the Constitution of South Carolina that no law to create a public debt shall take effect until it has been passed "by a vote of two-thirds of the members of each branch of the general assembly," it was said in the opinion in the case of Morton v. Comptroller General, supra: "It [a quorum] is indeed, for all legal purposes, as much the body to which it appertains as if all the component parts were present. Where, therefore, either branch of the General Assembly is spoken of, in the absence of a clear intent to the contrary, the quorum of such body must be understood as intended. It would follow that provisions ascertaining the mode in which the body should divide, in order to complete action in any given case, whether by a mere majority, or by a still greater proportion, must be interpreted primarily as applicable to the body as legally organized at the time such action is taken. If the rule is the mere majority rule, then a majority of the quorum present and acting is intended; if the rule is that of two-thirds, then two-thirds of such quorum must concur for effective action."

The Constitution of this state contains within itself evidence that its makers, in using such expressions as the one now under consideration, tacitly recognized the existence of the rule of construction stated in the authorities above cited. The provision (Const. § 52) that "a majority of each house shall constitute a quorum to do business" is to be given such effect, certainly for the ordinary purposes of legislation, that, on a question whether there has been a compliance by either house with a requirement of the Constitution relating to its legislative action, the majority of such house present at the time is to be regarded as the body referred to as one of the branches of the Legislature; in other words, when the Constitution refers to either house of the Legislature, it means no more than a majority of the members of such house present and taking part in its action.

In view of the provision above quoted, it could not, with any plausibility, be contended that anything more than the vote of a majority of the quorum present would be required for effective action under the provision that "each house shall choose its own officers, and shall judge of the election, returns, and qualifications of its members" (section 51); or under the provision that "each house shall have power to determine the rules of its proceedings and to punish its members and other persons for contempt," etc. (section 53); or under the provision that "no bill shall become a law unless on its final passage * * * a majority of each house be recorded as voting in its favor," etc. (section 63). If a house having a quorum of its members present is to be taken as the body referred to in the Constitution in the instances where effective action may be taken by a vote of a majority, it would seem that, unless a different meaning is otherwise disclosed, similar language could...