G.T. Wofford Oil Co. v. Burgin

• Decision Date: 10 November 1914
• Docket Number: 600
• Parties: G.T. WOFFORD OIL CO. v. BURGIN.
• Court: Alabama Court of Appeals

66 So. 931

11 Ala.App. 477

G.T. WOFFORD OIL CO. v. BURGIN.

No. 600

Court of Appeals of Alabama

November 10, 1914

Rehearing Denied Dec. 15, 1914

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

Action by Wilson I. Burgin against the G.T. Wofford Oil Company. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Tillman, Bradley & Morrow and L.C. Leadbeater all of Birmingham, for appellant.

J.T Lowrey, of Gloster, Miss., and Allen & Bell, of Birmingham for appellee.

THOMAS, J.

The appellee, Burgin, as oil inspector of Jefferson county, who was appointed such by the board of revenue of said county under the authority of the provisions of the local act approved February 27, 1901, entitled an act "To prevent the sale or use in the county of Jefferson of impure miners' oil," etc. (Local Acts 1901, p. 1249) brought this action to recover of the appellant oil company, who dealt in such oils in said county, the compensation allowed under section 12 of the act cited for services in inspecting and testing the miners' oil kept by appellant for sale in said county.

The main contention of the defense is that, before the services sued for were rendered, the local act mentioned was repealed by a general act of later date that was approved on April 21, 1911, and which is entitled an act "To regulate the inspection and use of illuminants in mines in the state of Alabama and sales of illuminants for the use in mines" (Gen.Acts 1911, p. 568), and which, in section 8 thereof, contains the following repealing clause:

"That all laws, general, local or special in conflict with this act be and the same are hereby repealed. Provided that such repeal of any local or special act shall not take effect or become operative until the first day of March, 1913."

A comparison of the provisions of the two statutes, in the light of the quoted repealing clause and of the principles announced and applied in the following authorities, will, we think, demonstrate that the latter so revises the whole subject-matter of the first that it must be construed as intending to set up a new system of inspection and as being designed as a substitute for the first. This, it seems to us, so fully appears from a mere reading of the provisions of each act as to obviate the necessity for any discussion in fortification of the position. Gibson v. Mabry, 145 Ala. 112, 40 So. 297; St. Clair Co. v. Smith, 112 Ala. 349, 20 So. 384; Turnipseed v. Jones, 101 Ala. 593, 14 So. 377; 36 Cyc. 1090, and cases cited; Cahall v. C.M.B. Ass'n, 61 Ala. 232; Lemay v. Walker, 62 Ala. 39; Scott v. Simons, 70 Ala. 352; Lewis' Sutherland, § 246; Lehman v. Robinson, 59 Ala. 219.

Consequently, we hold that the last statute repealed the first, unless the last is, as appellee insists, which presents the serious question in the case, void, as in conflict with section 77 of the Constitution, which reads:

"No state office shall be continued or created for the inspection or measuring of any merchandise, manufacture or commodity, but any county or municipality may appoint such officers when authorized by law."

The only time that this section of the Constitution has been up for construction before either of our reviewing courts, so far as we know or are able to find, was in the case of State v. McGough, 118 Ala. 159, 24 So. 395 (for the very able, illuminating, and interesting opinion in which we are indebted to the lamented Justice Haralson), in which case it was held that the act entitled an act "To provide for the inspection and sale of illuminating oils in the state of Alabama," approved February 16, 1897 (Acts 1896-97, p. 1133), was unconstitutional and void, as being repugnant to said section of the Constitution, because it created a state office for the inspection of such oils. The act here attacked is so different in what we regard vital particulars from the one there declared void as to require, we think, a different conclusion. The act there considered created the state office of oil inspector, for the purpose of inspecting and testing such oils, which, as seen, was in the very teeth of the express language of the constitutional provision quoted, declaring, as it does, that "no state office shall be continued or created for the inspection or measuring of any merchandise," etc. The act here does not create any office whatever, but merely provides, so far as its inspecting features are concerned, for the inspection of those illuminants that are to be used in mines, and entails the duty of making such inspections upon an existing state officer--the state mine inspector--as a part of his regular duties as such and without additional compensation. This office of state mine inspector was created by an act approved February 16, 1897 (Gen.Acts 1896-97, p. 1099), which was carried into the Code of 1896 as section 2899 et seq., and later embodied in the Code of 1907 as section 999 et seq., and subsequently revised and enlarged by an act approved April 18, 1911 (Gen.Acts 1911, p. 500).

Such office, therefore, was existing and had existed as undoubtedly valid and wholesome legislation continuously for a period of nearly 20 years, with unquestionably important and bona fide functions attached to it, as will appear from a mere reading of the statutes last cited, all designed to protect the health and lives of miners, when the act now in question was passed dealing with the subject of mine illuminants, a matter so intimately connected with the safety of miners that, as must be admitted, it cannot be ignored in our legislation, if that protection to which they are justly entitled is to be vouch-safed by the law. The act here, through an evidently wise and commendable purpose on the part of the Legislature, who, no doubt, realized the lack of co-ordination in the several local laws on the subject and the impossibility of securing by such means any co-operation adequate to the end in view between the state mine inspector and the several county mine oil inspectors,

who were created under such local acts, and who were consequently independent of him and independent of each other, and realizing, too, as the Legislature, no doubt, did, that any real and thorough inspection of a mine by the state mine inspector must involve a looking into the matter of the illuminants used therein, if he was to take every proper and necessary precaution as to the miners' safety, but that, if such right of inspection of oils were conferred on him, and left also in the several independent county mine oil inspectors, there would result either supererogation or a conflict of authority impairing the efficiency of the mine inspection law, sought to remove these conditions by repealing the local acts, and thereby to abolish the office of county mine oil inspector, and to confer by other provisions of the act the duty of inspecting and testing mine illuminants on an existing officer of more extensive authority (the state mine inspector), and which, to say the least, is, we think, logically appropriate as incidental to the other functions of that office and highly useful in meeting the real legislative aim for which such office was created and has been continued--the protection of the lives and health of miners.

The duties of the office of state mine inspector, as will appear from the statutes cited, existent, as said, at the time the act here considered was passed, may be summarized briefly as relating, in the language of appellant's brief, "to ventilation, circulation, condition of air, drainage, and general security; standards, balances and means of adjusting scales; instruments for testing air; stretchers, blankets, bandages; props, timbers, and safety lamps; openings, doors, safety catches, brakes, and indicators; the manner in which gaseous mines should be operated, the examination of machinery and appliances therein; the precautions against dangerous accumulations of gas, explosions, and accidents, and the investigation and report of the same; the rules to be observed and the method of their enforcement; and the adjustment of controversies in certain cases." Hence the conferring upon such officer, as the act here involved did, of the duty of testing and inspecting the illuminants to be used and as used in such mines, affecting, as they do, the matter of smoke and the purity of mine air, was necessary to the completeness of a system of mine inspection and to the centering upon one person, one head, of the responsibility for any failure in its execution. It has been held by our Supreme Court--not having in mind, however, the section of the Constitution now under review--that the conferring of additional duties upon an existing officer is not the creation of an office. State ex rel. Clarke v. Carter, 174 Ala. 266, 56 So. 974; State ex rel. Vandiver v. Burke, 175 Ala. 561, 57 So. 870. The integrity of this proposition cannot, we think, be successfully assailed, even when applied here. If true, then it cannot be said that the act attacked either "created" or "continued" any "state office" for the inspection or measuring of merchandise; hence it does not fall within the letter of the constitutional inhibition.

Does it fall within the spirit of that inhibition? We think not. For authority as to the purpose of that inhibition, we cannot do better than quote the language of one whose life was an important part of the history of this state in the troublous times that gave birth to the provision, and, now that he has passed to his final...