Ferguson v. Court of County Com'rs of Jackson County

• Citation: 187 Ala. 645,65 So. 1028
• Decision Date: 25 April 1914
• Docket Number: 712
• Court: Supreme Court of Alabama
• Parties: FERGUSON v. COURT OF COUNTY COM'RS OF JACKSON COUNTY.

65 So. 1028

187 Ala. 645

FERGUSON v. COURT OF COUNTY COM'RS OF JACKSON COUNTY.

No. 712

Supreme Court of Alabama

April 25, 1914

Rehearing Denied July 2, 1914

Appeal from Circuit Court, Jackson County; W.W. Haralson, Judge.

Certiorari by Robert L. Ferguson to review an order of the Court of County Commissioners of Jackson County putting in force therein certain orders passed under Code 1907, § 765, for the eradication of cattle ticks within the county. From an order dismissing the writ, petitioner appeals. Reversed and remanded.

W.H Norwood, of Scottsboro, for appellant.

Bouldin & Wimberly, of Scottsboro, for appellee.

GARDNER J.

By this proceeding we are invited to review the act of the Legislature approved August 26, 1909 (Acts Sp.Sess.1909, p 187), which purports in its body to amend the act establishing a state live stock sanitary board, approved March 12, 1907 (Acts 1907, p. 413). This last-mentioned act found in our Code (section 757 et seq.), was under review by the Court of Appeals in the case of the State v McCarty, 5 Ala.App. 212, 59 So. 543, where its constitutionality was upheld.

The constitutionality of the act approved August 26, 1909, is here attacked, but, under the well-known rule of this court, such questions will not be considered, unless necessary to the determination of the case.

A brief review of the acts amendatory of that establishing the state live stock board, approved March 12, 1907, is therefore necessary.

It seems that under the provisions of section 765 of the Code the work of cattle tick eradication and of the suppression of any contagious or communicable diseases of live stock should be undertaken in any county or in any part of the state when the state live stock sanitary board decided best. As above noted, this act became a law on March 12, 1907.

The Legislature passed an act approved August 6, 1907 (Acts 1907, p. 583), which purported to amend the act of March 12, 1907 (hereinafter referred to as the original act), by adding thereto what was denominated section 16, and which now appears in the Code as section 770. It reads as follows: "None of the provisions of this article shall apply to or be put in force in a county where the majority of its area is not under a stock law, or a law prohibiting cattle from running at large."

Subsequently, by an act approved August 20, 1909, this latter act was amended by the Legislature, by reference to section 770 of the Code, by which amendment that section was made to read as follows:

"None of the provisions of this article relating to the work of cattle tick eradication shall apply to or be put in force in a county where the majority of its area is not under a stock law, or a law prohibiting cattle from running at large." Acts Sp.Sess.1909, p. 61.

Subsequently another act was passed (approved August 26, 1909) purporting to amend the said original act by adding thereto section 16, to read as follows:

"That whenever the court of county commissioners or the board of revenue, as the case may be, in any county of this state, shall enter an order providing that the provisions of this act be put in force in the county, in which said court of county commissioners or board of revenue hold office, the said county shall be placed under the provisions of said act."

The petition in this case shows that the county of Jackson has not the majority of its area under stock law. None of the averments of the petition are denied; and we are therefore authorized to here accept them as true. 6 Cyc. p. 790.

It is therefore insisted that the above-mentioned act approved August 26, 1909, does not repeal the act of August 20, 1909, the same containing no repealing clause, and that as there is room for the operation of both acts, both should stand. If this view should be accepted, it would become unnecessary to consider the constitutional question involved.

We recognize the rule that repeal by implication is not favored, and that it is never invoked if there is a reasonable field of operation, by just construction, for both enactments and in such event both will be given effect. However, the question of implied repeal is one of intention.

"That construction of statutes is correct that gives to each the effect which the statute maker intended. The intent of the lawmaker is the law." City of Birmingham v. Southern Express Co., 164 Ala. 529, 51 So. 159.

The above amendments clearly indicate that the legislative mind was disturbed only concerning what localities should be affected by the law. The original act fixed this entirely within the discretion of the live stock board. The first amendment limited this jurisdiction, as to the entire act, to those counties where the majority of the area was under stock law. It will be noted that this first amendment was made by adding to the original act a section numbered 16. The next amendment confined the exemption of the above act to the work of cattle tick eradication. Act August 20, 1909, supra.

While this latter act is an amendment to section 770 of the Code, it is, so far as legislative intention is concerned, to be considered as if amending the said act of August 6, 1907, which added section 16 to the original act.

The act of August 26, 1909, purports to amend the original act by adding section 16, by which amendment it is left with a local board, the court of county commissioners or the board of revenue, as the case may be, to determine whether or not the provisions of the original act shall become effective in that county. It is thus seen that each of the above amendments relates to the same perplexing question. The amendment of August 26, 1909, purports to add to the original act the same provision numbered section 16 that was purported to be added by the act of August 6, 1907. The last amendment provides that whenever the court of county commissioners or board of revenue of any county of this state (excepting none) shall so order the provisions of the act shall become effective in that county. The language used is plain and comprehensive and admits of no exceptions.

When we consider the purposes of the original act, and the history of these amendments, and the one object sought to be attained by them, together with the wording of this last amendatory act, we are persuaded that it was clearly the intention of the Legislature that this amendment should supersede the others, and that the others were thereby repealed by implication. By this conclusion we are driven to a consideration of the constitutionality of the act approved August 26, 1909.

It is insisted by counsel for appellee that this act was declared constitutional by the Court of Appeals, in the case of the State v. McCarty, supra. There are expressions in this opinion, on the application for a rehearing, which tend to support this insistence. It needs only a careful reading of what was there said, however, to demonstrate that the court was dealing with the act, so far as any constitutional question was concerned, only in a broad and general sense, to the effect that it was competent for the Legislature to provide that the law shall become effective in any particular county upon the order of the local board. And in support of this conclusion the opinion cites the case of Dunn v. Wilcox County, 85 Ala. 144, 4 So. 661.

It will therefore be seen that the opinion in State v. McCarty, supra, did not deal with the objections to the act upon constitutional grounds here insisted upon, nor is there anything to indicate that the same were in any manner called to the attention of that court.

It is urged in the first place by counsel for appellant that the act of August 26, 1909, is violative of that portion of section 45 of our Constitution which requires that "each law shall contain but one subject, which shall be clearly expressed in its title."

It is further insisted that, even should the act be not violative of the above provision of section 45 of the Constitution, it still must fall, as in violation of that part of said section 45 of the Constitution which reads:

"And no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred, shall be re-enacted and published at length."

We will here treat this latter insistence, and, as will appear, this is conclusive of the case. It therefore becomes unnecessary that we consider the former insistence.

It is noted that the act of August 26, 1909, amends the said original act of March 12, 1907, by adding a section thereto numbered 16. No part of said original act is set out; the amendment being attempted solely by the incorporation in the act of an additional section.

This question was directly presented in the case of Tuscaloosa Bridge Co. v. Olmstead, 41 Ala. 9. The title of the act there under review was:

"An act to amend an act entitled an act to incorporate a company to build a bridge across the Warrior river, opposite, the city of Tuscaloosa, approved January 2nd, 1833."

The first section of this act read as follows:

"Be it enacted by the Senate and House of Representatives of the state of Alabama in general assembly convened: That the above-recited act be amended, by additional sections, numbered and worded as follows, which additional sections shall, for all purposes, be deemed and held as a part of the original act, to the same extent, and in the same manner, as if the same had been incorporated therein at the time of its passage."

The act then proceeds to add and set out additional sections 11, 12, and 13.

The court says:

"The language of the constitutional provision is as follows: 'No law, nor any section of any law, shall be revised or amended by reference

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