First Nat. Bank v. Smith

• Decision Date: 10 May 1928
• Docket Number: 2 Div. 923
• Citation: 117 So. 38,217 Ala. 482
• Parties: FIRST NAT. BANK OF EUTAW v. SMITH.
• Court: Alabama Supreme Court

117 So. 38

217 Ala. 482

FIRST NAT. BANK OF EUTAW v. SMITH.

2 Div. 923

Supreme Court of Alabama

May 10, 1928

Appeal from Circuit Court, Greene County; Benj. F. Elmore, Judge.

Petition of A.W. Smith for mandamus to the First National Bank of Eutaw, as County Depository of Greene County, to require respondent to pay a certain warrant drawn in petitioner's favor. From a judgment awarding the writ, respondent appeals. Affirmed.

Inzer Inzer & Davis, of Gadsden, for appellant.

J.F Aldridge and E.F. Hildreth, both of Eutaw, and R.B. Evins, of Birmingham, for appellee.

SOMERVILLE J.

The petitioner, A.W. Smith, seeks by the writ of mandamus to compel the respondent bank, as the county depository of Greene county, to pay to him the amount of a certain warrant issued to him by the probate judge on October 11, 1927, for work done by him on the public roads of the county, and drawn upon county funds accruing under the Act of August 22, 1923 (Acts 1923, pp. 197, 198) and known as the "gasoline fund."

The respondent depository bank declined to pay this warrant on the ground that the only fund out of which it was legally payable, viz. the "gasoline fund," had been already set aside by law exclusively for other public uses, and was therefore not legally available for such a payment.

This act of appropriation upon which respondent relies is the act approved September 9, 1927 (Local Acts 1927, p. 300), and entitled "An act to provide for the construction of certain public roads and bridges in Greene county; to define the powers and duties of the court of county commissioners relative to such public roads and bridges; to authorize the use of certain monies for such construction, and the borrowing of money for such purpose and the issuance of interest-bearing warrants and the pledging of certain funds for the payment of such warrants." (Italics supplied.)

Section 1 of the act declares:

"The Court of County Commissioners shall forthwith select and designate one hundred miles of the principal public roads, other than state highways, which shall be known as the secondary highway system of Greene county Alabama."

Section 5 of the act provides:

"All of what is known as the gasoline fund received by Greene county by virtue of the provisions of section 83 of an act approved August 22, 1923 (Acts 1923, page 197) is hereby set aside as a special fund to be used only in the construction, repair, and maintenance of said secondary highway system. There shall also be available for such construction all other funds in the county now available for public road and bridge work."

The petitioner's theory is that this act is unconstitutional and void, and hence that the "gasoline fund," which it attempts to appropriate to other exclusive uses, is still subject to the payment of his warrant--a correct conclusion, if the premise is correct.

Respondent's demurrer to the petition is based upon the assumption that the Act of September 9, 1927, is a valid law, and that section 5 of the act, as quoted above, prevents the payment of the warrant as demanded.

Counsel for petitioner deny the constitutionality of the act upon three grounds:

(1) Because the body of the act compulsorily appropriates the "gasoline fund" to the "construction, repair, and maintenance" of the highway system designated, while the title of the act merely "authorizes" its use for "construction"--thus violating that clause of section 45 of the Constitution which declares that "each law shall contain but one subject, which shall be clearly expressed in its title."

(2) Because there is a substantial variance between the act as advertised and the act as passed, in this, that the advertisement informed the people that only three-fourths of the "gasoline fund" would be so appropriated, while the act itself appropriates the entire fund--thus violating section 106 of the Constitution which requires that notice of local acts shall be given by a local newspaper publication, "which notice shall state the substance of the proposed law."

(3) Because the subject and purpose of this local act is already provided for by general laws--thus rendering the act a violation of section 105 of the Constitution, which inhibits local legislation in such a case.

We consider these propositions in the order stated.

1. To support their first contention, counsel for petitioner rely strongly on the case of First National Bank v. Hagood, 206 Ala. 308, 89 So. 497. It was there held that an act violated section 45 of the Constitution, where the title "authorized" the "commissioners' court to pay $600.00 out of the general county funds for extra assistance in the tax assessor's office," and the body of the act "required" such a payment; the assumption being that the terms "authorized" and "required" were of different meaning and effect, the one conferring a discretion and the other imposing a duty.

Conceding, of course, the soundness of that decision, an important difference must be noted between that act and this. There the title contained no general clause indicative and comprehensive of the subject-matter of the act. The subject was narrow, and the title specific and restricted, and the body of the act was equally so; hence, from the confliction of these single and specific terms in the one and in the other, there was no escape. But in the title to the act here involved there is a general clause comprehensive enough to include any appropriation of public money--obviously so, because there could be no construction of public roads and bridges without the appropriation thereto of public money, and "provision" for their construction must include such an appropriation.

But, it is insisted for petitioner, this general clause--conceding its sufficiency otherwise--is restricted by the special clause following, viz, "to authorize the use of certain monies for such construction"; and hence that the efficacy of the general clause is destroyed.

It is, of course, to be conceded that, if this special clause does narrow and restrict the general clause--if that is its plain purpose and application--then the body of the act in this particular must be germane to the restriction, and must conform thereto. Pillans v. Hancock, 203 Ala. 570, 572, 84 So. 757; Memphis St. R. Co. v. Byrne, 119 Tenn. 278, 104 S.W. 460, 462; Hyman v. State, 87 Tenn. 112, 9 S.W. 372, 1 L.R.A. 497; Fidelity, etc., Co. v. Shenandoah Valley R. Co., 86 Va. 1, 9 S.E. 759, 19 Am.St.Rep. 858; Cooley's Const. Limitations (8th Ed.) 310.

Manifestly, this act embodies but a single subject, the construction and maintenance of public roads and bridges; all of its provisions being germane, if not essential, to that single purpose. Manifestly, also, the title of the act contains but a single subject, the construction of public roads and bridges.

Is, then, the subject of the act clearly expressed in the title? Or is there in the subject dealt with a substantial departure from, and deceptive inconsistency with, the language of the title?

"A title should be liberally construed, and an act will be upheld if there is a substantial compliance with the constitutional requirement, although the title does not express the subject or object as unequivocally as possible. If the words used in a title, taken in any sense or meaning they will reasonably bear, are sufficient to cover the provisions of the act, the act will be sustained, even though such meaning may not be the most common meaning of the words." 25 R.C.L. 850, § 95; State v. Bartholomew, 176 Ind. 182, 95 N.E. 417, Ann.Cas.1914B, 91.

Keeping these principles in view, we see no reason why the compulsory appropriation of the "gasoline fund," as prescribed by section 5 of the act, should not be treated as germane to the general provision "for the construction" of these roads, since their "construction" required, and not merely authorized, the appropriation of definite funds for its accomplishment. So, also, the more restricted term "to authorize," as found in the title, was appropriate, if not necessary, to indicate that other "monies," if any, were to be made available for use, though not set aside exclusively, and not required to be used, for the purposes of the act. Certainly, there is no necessary contradiction between the title and the body of the act with respect to those matters, and, upon a reasonable construction of the language of each, all contradiction may be avoided; for "provision" for construction by the compulsory devotion of one fund is perfectly consistent with a merely authorized use of another fund, or "certain monies."

We do not overlook the full import of the constitutional provision here involved, viz. that the subject of the act must be clearly expressed in its title.

But, when the subject of the act is clearly expressed in the title, so as to comprehend the entire act, and the question is merely upon the correspondence or variance of the subsidiary features--the ways and means of accomplishment--detailed in the title and in the body of the act, courts will decline to find conflict or deception when it can be avoided by any reasonable construction of the language used. As declared by this court in the leading case of Ex parte Pollard, 40 Ala. 99:

"The object of the constitutional provision was to prevent deception by the inclusion in a bill of matter incongruous with the title. *** The question must always be,

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