Green v. Austin

• Decision Date: 30 December 1982
• Citation: 425 So.2d 411
• Parties: John B. GREEN v. Robert AUSTIN, et al. 80-841.
• Court: Alabama Supreme Court

Page 411

425 So.2d 411

John B. GREEN v. Robert AUSTIN, et al.

80-841.

Supreme Court of Alabama.

Dec. 30, 1982.

B.J. McPherson, Oneonta, for appellant.

Thomas B. Prickett, II, Robert E. Austin, Hugh A. Nash, Bishop K. Walker, Jr., Walter W. Kennedy, III, Thomas L. Rountree, Wayman G. Sherrer, Alexander M. Smith, Jack M. Bains, J. Robert Bentley, John J. Dobson, and Judy D. Thomas, Oneonta, appelless pro se.

PER CURIAM.

This is an appeal from a judgment of the Circuit Court of Blount County, Alabama, which held Acts 81-642 and 81-643 of the 1981 Legislature unconstitutional and enjoined John B. Green, as circuit court clerk of Blount County, Alabama, from enforcing the provisions of these acts. The complaint in this case challenged three local acts of the 1981 Legislature relating only to Blount County, as being violative of Ala. Const. art. IV, §§ 96 and 104(24). The trial court declined to rule on the constitutionality of Act 81-641, but declared that Acts 81-642 and 81-643 violated the provisions of § 96 of art. IV of the Constitution of 1901 and were therefore unconstitutional, null and void, and of no force and effect.

The trial court first granted a temporary injunction and allowed the attorney general 10 days to file responsive pleadings, since the case challenged the constitutionality of an act of the Legislature. The attorney general did not file a responsive pleading, and, therefore, the injunction was made permanent by the trial court. The defendant appeals this decision, and we affirm.

Act No. 81-641 taxed as costs, in addition to all other costs, $20.00 for service of suit papers by the sheriff arising out of criminal or civil actions instituted outside the state, with such funds paid into the general fund of the county designated for the sheriff and to be used for the costs and expenses of serving papers or documents. Act No. 81-642 taxed as costs, in addition to all other costs, $12.50 for the service of suit papers by the sheriff arising out of any civil or quasi-civil proceedings in the courts, with these funds to be used for the same purposes as provided in Act No. 81-641. Act No. 81-643 taxed as costs, in addition to all other costs, $10.00 upon conviction of any criminal offense, misdemeanor or felony, to be paid into the general fund of the county and used exclusively for the maintenance and supervision of the county jail building. It is clear that these local acts levy a tax upon litigation in the form of "costs and charges of courts" within the purview of § 96 of the Constitution of 1901.

Section 96 of the Constitution declares the public policy of the state with respect to the costs and charges of courts as follows:

"The legislature shall not enact any law not applicable to all the counties in the state, regulating costs and charges of courts, or fees, commissions or allowances of public officers."

Ala. Const. art. IV, § 96.

The complaint also claimed that the acts in question violated § 104(24) of the Constitution of Alabama, which provides in pertinent part:

"The legislature shall not pass a special, private, or local law in any of the following cases:

....

(24) Creating, increasing, or decreasing fees, percentages, or allowances of public officers ...."

Ala. Const. art. IV, § 104(24).

Our Constitution mandates uniformity in the costs and charges of courts, as well as the fees, percentages, and allowances to public officers. Morgan County v. Edmonson, 238 Ala. 522, 192 So. 274 (1939); Vaughan v. State ex rel. Barker, 212 Ala. 461, 103 So. 38 (1925). These two constitutional provisions are complementary, since at the time the Constitution of 1901 was ratified many public officials, including court officials, were compensated from the fees, costs, and charges of court. At the present time, most public officials, and all judicial officers, are compensated by salaries and not from fees, percentages, and allowances accruing from the costs and charges of courts. Accordingly, since no issue was presented respecting the fees, percentages, and allowances of public officers, the trial court did not deem it necessary to address this claim of constitutional violation.

As stated above, the purpose of § 96 is "to secure uniformity throughout the State as to costs and charges of court, fees, commissions, percentages and allowances of public officers. Like charges for like service rendered." Morgan County v. Edmonson, 238 Ala. 522, 526, 192 So. 274, 276-77 (1939). Acts 81-642 and 81-643 are local acts applying only to Blount County and as such are contrary to, and in violation of, § 96. Garmon v. Thornton, 255 Ala. 136, 50 So.2d 402 (1951); Vaughan v. State ex rel. Barker, 212 Ala. 461, 103 So. 38 (1925).

Section 105 of the Constitution of Alabama provides:

"No special, private, or local law, except a law fixing the time of holding courts, shall be enacted in any case which is provided for by a general law, or when the relief sought can be given by any court of this state; and the courts, and not the legislature, shall judge as to whether the matter of said law is provided for by a general law, and as to whether the relief sought can be given by any court; nor shall the legislature indirectly enact any such special, private, or local law by the partial repeal of a general law."

Ala. Const. art. IV, § 105.

Amendment No. 375, which amended § 110 of the Constitution of Alabama, defines a general law as one "which in its terms and effect applies either to the whole state, or to one or more municipalities of the state less than the whole in a class." A local law is defined as "a law which is not a general law or a special or private law." Ala. Const.amend. 375.

It must be pointed out that costs and charges of court are already provided for by general law under Code 1975, § 12-19-20. This section provides that court fees in both civil and criminal cases in circuit and district courts "shall be uniform for each type of case and each court level." This section also states that the prescribed court fees, except for certain specifically enumerated funds and taxes not applicable here, "shall be exclusive of all other fees." (Emphasis supplied.)

Section 105 of the Constitution of Alabama was addressed in Peddycoart v. City of Birmingham, 354 So.2d 808 (Ala.1978), when this Court stated:

"When we see the phrase 'provided for' preceded by the words 'No ... local law,' we are bound to consider the phrase as one of restraint and limitation pertaining to matters of the same import dealt with in the general law. Section 105, then, is an additional constitutional proscription upon the type or kind of legislation which the legislature is allowed to enact, following as it does § 104 which also contains limitations upon the legislative power."

354 So.2d at 811. The court further explained:

"We do not look upon the presence of a general law upon a given subject as a bare segment, but to the contrary, its presence is primary, and means that a local law cannot be passed upon that subject. By constitutional definition a general law is one which applies to the whole state and to each county in the state with the same force as though it had been a valid local law from inception. Its passage is none the less based upon local considerations simply because it has a statewide application, and already having that effect, the constitutional framers have prohibited the enactment of a local act when the subject is already subsumed by the general statute."

354 So.2d at 813. (Emphasis in original.)

Thus, in this case, since the Legislature has already enacted a general law pertaining to the costs and charges of court (§ 12-19-20), Acts 81-642 and 81-643 are repugnant to § 105 of the Constitution of Alabama. See, Peddycoart v. City of Birmingham, 354 So.2d 808 (Ala.1978); Opinion of the Justices No. 288, [MS. February 2, 1982] 425 So.2d 407 (Ala.1982).

At this juncture, it is important to note that Ala. Const.amend. § 344 appears to exempt Blount County from the application of the above mentioned constitutional provisions. Amendment 344 provides in pertinent part:

"The legislature may, from time to time, by general or local laws applicable to or operative in Blount county and approved by a majority of the...