Gray v. Johnson

Decision Date13 January 1938
Docket Number6 Div. 212
Citation235 Ala. 405,179 So. 221
PartiesGRAY v. JOHNSON, Treasurer.
CourtAlabama Supreme Court

Rehearing Denied Feb. 24, 1938

Appeal from Circuit Court, Walker County; R.L. Blanton, Judge.

Petition of J.M. Gray for mandamus to Travis Johnson, as Treasurer of Walker County. From a judgment of nonsuit, the plaintiff appeals.

Affirmed.

Arthur Fite, of Jasper, for appellant.

W.W Bankhead and Pennington & Tweedy, all of Jasper, for appellee.

GARDNER Justice.

By the act approved July 31, 1935, Local Acts 1935, p. 131, the "County Commission" of Walker County was abolished and a Board of Revenue established in lieu thereof. The validity of the local act is challenged by counsel for appellant upon the sole ground that the act as passed differed materially and in substance from the published notice, thus violating section 106 of the Constitution. Section 11 of the act reads as follows: "That the Board of Commissioners shall have authority to employ a clerk whose duty shall be to keep the books and do and perform such other things as may be required of him by the Board of Commissioners; the said Clerk to be paid such salary or compensation as may be fixed and prescribed by the Board of Commissioners and the time of his service shall be at the will of the Board of Commissioners." Section 11, page 134, Local Acts 1935.

The published notice is made exhibit to the petition, and appears in the report of the case.

It is full and complete; and that the substance of the act, except in the one particular hereinafter noted, sufficiently appears therein, is not here questioned.

It is to be observed that in the published notice the concluding provision is: "for a clerk at a salary of not more than $100.00 per month," while section 11 of the act, though providing for a clerk, leaves the matter of compensation as well as length of service to the board's discretion.

The argument is that the removal, in the act, of the restriction as to the maximum salary of the clerk, appearing in the published notice, is such a material departure of substance as to render the act invalid.

The decided cases plainly state the rules by which the courts are to be guided in the determination of questions of this character. The general rule, as to the constitutionality of statutes, is well understood. The courts seek to sustain, and not strike down, the enactment of a co-ordinate department of the government. All reasonable doubt is resolved in favor of the action of the Legislature. Every legislative act is presumed to be constitutional and every intendment is in favor of its validity. Tucker v. State, 231 Ala 350, 165 So. 249. And these general rules are as applicable to this provision of our Constitution as to other constitutional limitations upon legislative power. Byrd v. State, 212 Ala. 266, 102 So. 223.

The evil intended to be corrected by section 106 of the Constitution was pointed out in Wallace v. Board of Revenue, 140 Ala. 491, 37 So. 321, and its purpose declared to be the prevention of deception of those immediately affected by the local legislation, to the end that they may have a fair opportunity to protest against and oppose its enactment.

While the requirements of sections 45 and 106 of the Constitution are not identical, yet their objects are, and their similarity suggests the same general line of reasoning in construing them. And in harmony with the rule of construction as to section 45, our decisions, in speaking of section 106, have observed that this court should likewise give this provision a broad and liberal interpretation, and avoid so strict a construction as to embarrass legislation.

And these decisions disclose that as to matters of form and detail, not affecting the spirit and purpose of the Constitution, a liberal interpretation has been indulged to uphold rather than strike down the act. Tucker v. State, supra.

Speaking of this provision of our Constitution, the court, in Christian v. State, 171 Ala. 52, 54 So. 1001, 1002, said: "The Constitution does not proceed upon the theory that all the details of every proposed law should be worked out in advance and without the aid of legislative wisdom. It requires only that the local public shall be advised of the substance of the proposed law, of its characteristic and essential provisions, of its most important features. And this court has so held in a number of cases. Its language has been that the Constitution is complied with if the notice contains a fair compendium or abstract of the act in all its essential features. It has been said that the Constitution does not interfere with the right of the Legislature to shape up and work out the details of local legislation."

And in Commissioner's Court of Winston County v. State, 224 Ala. 247, 139 So. 356, 357, the court makes the following observation, here applicable: "So we would not be understood as saying the publication of the proposed bill in full would make a provision thereof matter of substance which would otherwise be considered mere matter of detail."

Counsel for the respective parties have noted the cases considered in point as to the contention of each. We have carefully read them all. Those for appellant are: First Nat. Bank of Eutaw v. Smith, 217 Ala. 482, 117 So. 38, 41; State v. Allen, 219 Ala. 590, 123 So. 36; State v. Speake, 144 Ala. 509, 39 So. 224; Roper v. State, 210 Ala. 440, 98 So. 286; Ex parte State ex rel. Letford, 200 Ala. 162, 75 So. 910; Wallace v. Board of Revenue, supra; Alford v. Hicks, 142 Ala. 355, 38 So. 752; Brame v. State, 148 Ala. 629, 38 So. 1031; First Nat. Bank v. Hagood, 206 Ala. 308, 89 So. 497; and for appellee: Tucker v. State, supra; Byrd v. State, supra; State v. Merrill, 218 Ala. 149, 117 So. 473; Christian v. State, 171 Ala. 52, 54 So. 1001; Houston County v. Covington, 233 Ala. 606, 172 So. 882; McGehee v. State, 199 Ala. 287, 74 So. 374; Polytinsky v. Johnston, 211 Ala. 99, 99 So. 839; Leonard v. Lyons, 204 Ala. 615, 87 So. 99; State v. Tunstall, 145 Ala. 477, 40 So. 135; Commissioner's Court v. State, supra; Bice v. Foshee, 19 Ala.App. 421, 97 So. 764.

These authorities, in so far as they relate to the application of section 106 of the Constitution, are helpful as illustrative of the general rule by which the court is to be guided, but they serve as illustrations only. Each case must depend upon its own peculiar status; or, as otherwise stated in Commissioner's Court of Winston County v. State, supra: "The application of this rule must turn much upon the act in question." For in each case the decision must turn upon the "appraisal of the elemental and substantial features on the one hand, and of the subsidiary and nonsubstantial on the other." First National Bank v. Smith, supra.

It is clear enough that the primary purpose of the local act was the abolition of the ...

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  • In re Harless
    • United States
    • U.S. Bankruptcy Court — Northern District of Alabama
    • September 25, 1995
    ...constitutional and every intendment is in favor of its validity. Tucker v. State, 231 Ala. 350, 165 So. 249 (1935); Gray v. Johnson, supra 235 Ala. 405, 179 So. 221 (1938). Although a statute may be invalid or unconstitutional in part, the part that is valid will be sustained where it can b......
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