Fulton v. State

• Decision Date: 31 January 1911
• Parties: FULTON ET AL. v. STATE.
• Court: Alabama Supreme Court

54 So. 688

171 Ala. 572

FULTON ET AL. v. STATE.

Supreme Court of Alabama

January 31, 1911

Rehearing Denied Feb. 16, 1911.

Appeal from City Court of Birmingham; H. A. Sharpe, Judge.

Bill by the State against C. L. Fulton and others. From orders overruling demurrers to the bill and denying a motion to dissolve an injunction and discharge writs of seizure defendants appeal. Affirmed.

J. W Davidson, J. A. W. Smith, William Vaughan, and A. Leo Oberdorfer, for appellants.

Alexander M. Garber, Atty. Gen., Thomas W. Martin, Asst. Atty. Gen Sam Will John, and S.D. Weakley, for the State.

MAYFIELD J.

This bill was filed by the state, on the relation of the Attorney General, to abate and enjoin a "liquor nuisance," as defined and provided for by two acts of the Legislature, one known as the "Carmichael Act," and the other as the "Fuller Act." Acts 1909, pp. 8, 63. The bill also prayed for a writ of seizure to issue as for the goods and chattels alleged to be used in connection with, and in carrying on, the nuisance, all of which is provided for in the two acts of the Legislature to which reference is made. Upon the filing of the bill, verified by affidavit, and its material averments being supported by independent appropriate affidavits, a temporary injunction and writs of seizure issued, in accordance with the prayer of the bill. The bill and process seem to conform to the statutory requirements so made and provided. The respondents interposed demurrers to the bill, and moved the court to both dissolve the injunction and discharge the writs of seizure and restore the property seized to respondents. The demurrer and the motion were heard and overruled and denied. From these interlocutory orders and decrees, this appeal is prosecuted.

The first proposition asserted and insisted upon by appellants is that both the Carmichael and Fuller acts are inoperative because repealed by a subsequent act of the Legislature, of August 26, 1909, which readopted the Code of 1907. Acts 1909, p. 174.

The readopting act is short, and reads as follows:

"Section 1. That the three printed volumes published by authority of law in 1907, known as the Political, Civil, and Criminal Codes, containing sections 1 to 7900 both inclusive together with the rules of practice of courts, be and the same are hereby adopted as the Code of Alabama."

"Sec. 2. That all acts of the Legislature, passed at the special sessions of the Legisture, altering, amending or repealing either the sections of the Code, or the acts of the Legislature passed at the general or special sessions are unaffected by the adoption of this Code."

The Carmichael and Fuller acts were both passed at the special session at which the act readopting the Code was passed. The Carmichael act was passed on the 9th day of August, and the Fuller act on the 25th day of August, and the readopting act was passed on the 26th day of August of the same year (1909).

It is argued--with some force and plausibility--that, as the Code was thus readopter after the passage of these two general acts, the repealing sections contained in the Code so adopted worked the repeal of all general laws, including the two in question, which were not excepted by section 2 of the readopting act.

Section 10 of the present Code (the retaining and repealing clause of all our previous Codes), after enumerating certain general and local laws not to be repealed by the Code (which enumeration does not include the acts in question), concludes as follows: "But subject to the foregoing provisions, all statutes of a public, general and permanent nature, not included in this Code, are repealed."

But for section 2 of the readopting act, the two statutes in question would probably be repealed by the above-quoted provision in the Code as readopted.

It therefore becomes necessary to construe the act readopting the Code, and especially section 2 thereof, to see if the Carmichael and Fuller acts were excepted from the general laws repealed by the Code as readopted. In construing this statute, as all others, we should ascertain the intent or will of the lawmakers, and give the statute that effect, if that will or intent is consistent with a reasonable interpretation of the language used in the statute.

The following are some of the well-authenticated and oft-quoted canons of construction which we will endeavor to observe in construing the statute in question:

"That for the sure and true interpretation of all statutes in general (be they penal, or beneficial, restrictive, or enlarging of the common law) four things are to be discerned and considered:

"(1) What was the law before the making of it?

"(2) What was the mischief and defect for which the law did not then provide?

"(3) What remedy the Legislature hath resolved and appointed to cure the disease of the commonwealth?

"(4) The true reason of the remedy. And then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle intentions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the remedy, according to the true intent of the makers of the act, pro bono publico."

"(5) But, if the intention of the lawmakers has not been carried into effect by the language used, it is better that we should abide the words of the statute, than to reform it according to the supposed intention.

"(6) When the language is not only plain, but admits of but one meaning, the task of interpretation can hardly be said to arise (and incidental rules which are mere aids, to be invoked when the meaning is clouded, are not to be regarded). It is not allowable,

says Vattel, to interpret what has no need of interpretation. The Legislature must be intended to mean what it has plainly expressed, and consequently there is no room for construction. But whilst it may be conceded that where its provisions are ambiguous, and the legislative intent is doubtful, the effect of several possible constructions may be looked at in order to determine the choice, it is very certain that when once the intention is plain it is not the province of a court to scan its wisdom or its policy. Its duty is not to make the law reasonable, but to expound it as it stands, according to the real sense of the words." Hilliard v. State, 100 Ala. 634, 13 So. 756.

(7) In the construction of statutes, they should be so interpreted, if practicable, that the intention of the Legislature may be carried into effect, and the spirit of the enactment preserved. Under the influence of this rule, the letter is frequently sacrificed to the general purpose and intention of the act. Kennedy's Heirs and Executors v. Kennedy's Heirs, 2 Ala. 572.

(8) The office of construction is to ascertain what the language of an act means, and not what the Legislature may have intended. "Index animi sermo." The court knows nothing of the intention of an act, except from the words in which it is expressed, applied to the facts existing at the time; meaning of the law being the law itself. Maxwell v. State, 89 Ala. 150, 7 So. 824.

(9) This rule of construction does not imply that the letter shall control the spirit. A thing may be within the letter of a statute and not within the meaning or spirit, or it may be within the clear meaning or spirit and not within the letter. Courts, in construing statutes, often look less to the letter than to the context, the spirit, or to the meaning of the statutes to arrive at the true intent of the lawmaker. Statutes are often drawn inartificially. Apt words are not always used, and perspicuity and precision are not always observed, by those who draft statutes. The whole statute under construction, as well as others, must sometimes be looked to, to ascertain the true meaning and intent. Thompson v. State, 20 Ala. 54; Atkins' Case, 18 Wall. 301, 21 L.Ed. 841.

(10) Two or more statutes or laws are often in pari materia, and where they are they should all be looked to, in order to ascertain the meaning and intent of each.

(11) Repeal by implication is not favored. It is only when two laws are so repugnant to or in conflict with each other that it must be presumed that the Legislature intended that the latter should repeal the former. This is never the case if there be a reasonable field of operation, by a just construction, for both; for then they will both be given effect. This is preferable to repeal by implication. Riggs v. Brewer, 64 Ala. 282; Herr v. Seymour, 76 Ala. 270; Wyman v. Campbell, 6 Port. 219, 31 Am. Dec. 677. Each statute which constitutes a part of a system of laws should, if practicable, be so construed as to make the system consistent in all its parts; each is thus considered a part of the whole.

(12) That construction of a statute is correct which gives effect to the intent of the lawmaker. The intent of the lawmaker is the law. If the meaning of the language used is clear and certain, there is neither room nor occasion for interpretation. It is only when the meaning of the language used in a statute is not obvious that courts are needed or authorized to construe them. But if the meaning of the language used is uncertain, or the intent rests in inference, then construction or interpretation by courts is useful and proper.

(13) Statutes may be repealed by implication; the courts do not however, favor such repeal, and if, by a fair and reasonable construction of a later and former statute, the two can be reconciled, and each left to operate, that construction will be adopted. Smith v. Speed, 50 Ala. 276; Iverson v. State, 52 Ala. 170; Enloe v. Reike, 56 Ala. 500; Parker v. Hubbard, 64 Ala. 203; Cook v. Meyer, 73 Ala. 580; Roberts v. Pippen, 75 Ala....