Haralson v. State ex rel. King

• Decision Date: 29 October 1953
• Docket Number: 7 Div. 211
• Citation: 71 So.2d 79,43 A.L.R.2d 1343,260 Ala. 473
• Parties: , 43 A.L.R.2d 1343 HARALSON v. STATE ex rel. KING et al.
• Court: Alabama Supreme Court

Page 79

71 So.2d 79

260 Ala. 473, 43 A.L.R.2d 1343

HARALSON v. STATE ex rel. KING et al.

7 Div. 211.

Supreme Court of Alabama.

Oct. 29, 1953.

Rehearing Denied March 18, 1954.

C. A. Wolfes, Leonard Crawford, Fort Payne, for appellant.

Chas. J. Scott and W. M. Beck, Fort Payne, for appellees.

Si Garrett, Atty. Gen., and Bernard F. Sykes, Asst. Atty. Gen., amici curiae, in support of appeal.

Pertinent assignments of error are as follows:

'4. The Court erred in holding that the issuance of the document showing preliminary counts of population as compiled in field offices, dated August 15, 1950, and market plaintiff's Exhibit No. 3, met all the requirements of 'a publication' as provided for in the reclassification statutes.

'5. The Court erred in holding that the effective date of the Federal decennial population for 1950 insofar as this case is concerned was the 90th day after the first day of the regular session of the Legislature of Alabama commencing May 8, 1951.

'6. The Court erred in holding that August 6, 1951, was the effective date of the Federal decennial population census of 1950 so far as this case is concerned.'

'8. The Court erred in holding and decreeing that the appellant, Henry Haralson, be excluded from sitting with the City Council of Fort Payne, Alabama, and from having a vote in its proceedings.

'9. The Court erred in entering the decree in this cause in favor of the appellees and against the appellant.

'10. The Court erred in overruling the motion of the appellant to set aside the judgment entered in this cause on May 14, 1953, and grant a new trial to the appellant.'

LIVINGSTON, Chief Justice.

Quo warranto to determine the right of Henry Haralson, the duly elected Mayor of Fort Payne, Alabama, to sit with the Council of said city and vote in its proceedings. Haralson was elected Mayor of Fort Payne in a municipal election held on September 15, 1952.

Section 404, Title 37 of the 1940 Code of Alabama, provides:

'In all cities and towns at the general election to be held on the third Monday in September, 1940, and quadrennially thereafter, there shall be elected a mayor, who, in cities having a population of six thousand or more, according to the last or any subsequent federal census, shall not sit with the council, nor have a vote in its proceedings, and he shall have the power and duties herein conferred. In all cities and towns having a population of less than six thousand inhabitants according to the last or any subsequent federal census, the legislative functions shall be exercised by the mayor and five aldermen. The mayor shall preside over all deliberations of the council. At his discretion he may vote as a member of the council on any question coming to a vote, except in case of a tie, in which event he must vote. The aldermen in such municipalities shall be elected by the city or town at large, at the first general election held on the third Monday in September, 1940, and quadrennially thereafter or from wards as the said councils may determine, not less than six months before an election.'

The sole question involved in this appeal is: When did the 1950 Federal Decennial Census become effective as a reclassification date as provided for in Title 1, Section 14 of the Alabama Code of 1940, as amended by Act No. 174, General and Local Acts 1951, p. 415, approved June 29, 1951?

As amended, Section 14, Title 1, Code, reads as follows:

'Reclassification date.--The ninetieth day after the first day of the first regular legislative session held next after the publication by the federal government of the regular federal decennial population census for Alabama is hereby fixed as the date for any reclassification under any law requiring classification based on such said census. The provisions of the preceding sentence shall not apply to any law passed by the 1951 reqular session of the legislature of Alabama. The provisions of this section shall not apply to any law which provides for the levying or collection of license taxes on a population basis or the distribution of state and county collected or administered revenues or funds on a population basis; and the population as disclosed by any federal decennial census, as soon as the same is proclaimed, published or certified by the director of the United States census bureau, shall be used in administering any such law.' (Emphasis supplied.)

The italicized provisions of Section 14 were added by the 1951 Amendment.

It is undisputed that the population of Fort Payne was 4,424 according to the Federal Decennial Census of 1940, and 6,226 according to the 1950 Federal Decennial Census. All parties agree that if the 1950 Federal Decennial Census was in effect, as relates to the reclassification laws of Alabama, Sec. 14, Title 1, as amended, Code, on September 15, 1952, the date on which Haralson was elected Mayor of Fort Payne, then the City of Fort Payne was on that date a city of more than 6,000 population and Haralson would have no right to sit with the city council or to vote in its proceedings. The trial court held that the 1950 Census was so in effect.

It is clear enough that Sec. 14, Title 1, supra, both before and after its amendment by Act No. 174, appvd. June 29, 1951, was intended by the legislature to afford a definite ascertainable date, which would be known by all concerned, and upon which reclassification according to population would become effective. It is equally clear that reclassification within the state must take place within the state as a whole and not by piecemeal.

It is also quite clear that if the 1950 Federal Decennial Census was not published prior to the first day of the regular session of the 1951 Legislature, then, under the first sentence of Sec. 14, Title 1, supra, the population basis of Fort Payne had not changed from the 1940 Census figures and could not change until the ninetieth day after the first day of the regular legislative session of 1953.

The judgment of the court below is to the effect that, as of September 15, 1952, the population of Fort Payne was more than 6,000, according to the legislative intent as expressed in Title 1, Sec. 14, supra.

The question of paramount importance in this case, in fact, the sole question, is one of legislative intent. What did the Legislature of Alabama intend, as to the reclassification date here involved under the undisputed facts in this case, by re-enacting, on June 29, 1951, the first sentence of Sec. 14, Title 1, supra, and adding thereto, by amendment, the italicized part of said section? There is no sort of doubt as to legislative authority for fixing a reclassification date based upon the Federal Decennial Census.

Appellees introduced as evidence a certificate of Roy V. Peel, Director of the Bureau of Census, to the effect that as of April 1, 1950, the population of the City of Fort Payne was 6,226. This certificate was dated November 25, 1952, and is Exhibit No. 1 for plaintiff.

Appellees then introduced as evidence another such certificate from the Department of Commerce, Bureau of Census, Washington, D. C., dated January 27, 1953. It also was certified by Roy V. Peel, Director of the Bureau of Census, as to the population of the State of Alabama, as of April 1, 1950. Attached thereto is a document entitled '1950 Census of Population-Advance Reports' (for Alabama), bearing the date of October 4, 1951. The population figures therein contained are stated to be the 'final figures for the State released today' (October 4, 1951) 'by Roy V. Peel, Director, Bureau of the Census, Department of Commerce.' Said certificate and document were received as Plaintiff's Exhibit No. 2.

Appellees also introduced as evidence a printed document, not certified to by any official, entitled '1950 Census of Population-Preliminary Counts' (for Alabama), dated August 15, 1950, wherein it is stated that the figures in this report are only preliminary counts of population as compiled in field offices. Said document was designated as Plaintiff's Exhibit No. 3. Upon objection of appellant, this document was not admitted as evidence, inasmuch as it was not authenticated by any proper official or custodian. The court, however, stated that it would be allowed for the purpose of showing that the government issued other bulletins.

Appellant introduced as evidence documents showing the official count (for Alabama) of the 17th Census of the United States on file in the Bureau of Census, certified by Roy V. Peel, Director of the Bureau of Census, said certificate bearing date of September 11, 1951. Attached to these documents was the certification of Mrs. Agnes Baggett, Secretary of State of Alabama, stating that the said official count of the 17th Census had been filed in the office of the Secretary of State of Alabama, as certified to the Governor of Alabama, under date of September 11, 1951, by Roy V. Peel, as Director of the Census. These attached documents were admitted in evidence as Defendant's Exhibit A.

Act No. 174, Gen. & Lo. Acts 1951, was approved on June 29, 1951, some two months after the legislature had convened in regular session in May of 1951. Prior to June 29, 1951, the Bureau of the Census was in process of taking the census and compiling its reports. We see from the evidence offered that as early as August 15, 1950, the Census Bureau issued a bulletin showing the 'preliminary count of the returns of the 1950 Decennial Census for Alabama.' The bulletin dated August 15, 1950, does not even purport to be final or conclusive. Prior to June 29, 1951, in addition to the bulletin dated August 15, 1950, there were other bulletins showing preliminaries and estimates of what the final census in Alabama would be. The legislature had knowledge of that fact on and prior to June 29, 1951, the date it amended the reclassification statute--that the census was not complete but that preliminary figures were available. It, therefore, amended Title 1, Sec. 14, which...