Hawkins v. City of Birmingham

• Court: Alabama Supreme Court
• Writing for the Court: GARDNER, Justice. GARDNER, Justice.
• Citation: Hawkins v. City of Birmingham, 239 Ala. 185, 194 So. 533 (Ala. 1940)
• Decision Date: 11 January 1940
• Docket Number: 6 Div. 559.
• Parties: HAWKINS, JUDGE, v. CITY OF BIRMINGHAM.

194 So. 533

239 Ala. 185

HAWKINS, JUDGE, v. CITY OF BIRMINGHAM.

6 Div. 559.

Supreme Court of Alabama

January 11, 1940

Rehearing Denied March 7, 1940.

Appeal from Circuit Court, Jefferson County; J. F. Thompson, Judge.

Application of the City of Birmingham for writ of prohibition to Eugene H. Hawkins, as Judge of Probate of Jefferson County, to prohibit him from further procedure in the matter of a referendum upon a city tax ordinance. From a judgment granting the writ, defendant appeals.

Affirmed.

Thos E. Skinner, Mullins & Deramus, and Caesar B. Powell, all of Birmingham, for appellant.

W. J Wynn and Jas. H. Willis, both of Birmingham, for appellee.

GARDNER Justice.

In March, 1939, an ordinance was adopted by the City Commission of Birmingham imposing certain additional license taxes upon dealers in tobacco products, cigars, cigarettes and smoking tobacco, with provisions clearly designed to constitute such additional taxes in substance and effect consumers' taxes.

In June, 1939, a petition was presented to the Probate Judge of Jefferson County purporting to be signed by five thousand qualified electors of the city of Birmingham, looking to an election to be held for a repeal of said tobacco tax ordinance--said petition being filed under the provisions of General Acts 1927, page 254, amending section 16 of the Act of 1915, as amended by Act of August 15, 1923. See, section 8, Act of September 25, 1915 (General Acts 1915, page 793; section 16, Act of August 15, 1923 (Gen.Acts 1923, p. 118); section 1, Act of August 11, 1927, General Acts 1927, page 254). The city of Birmingham filed objections before the Probate Judge, and subsequently instituted this proceeding for a writ of prohibition against any further procedure on his part in relation to said petition. The writ was awarded, and from that judgment, this appeal is prosecuted.

Appellant insists that the statutory provisions, above referred to, for initiative and referendum are valid (citing, among other authorities, 43 Corpus Juris 584 and 76; Yeilding v State, 232 Ala. 292, 167 So. 580; Stein v. Mayor, etc., 24 Ala. 591; In re Opinion of the Justices, 232 Ala. 56, 166 So. 706 and Id., 232 Ala. 60, 166 So. 710), and that the words "any ordinance" in the statute should be accepted in their literal sense.

But this latter insistence overlooks the rule of construction by which courts are guided, that is, they are not controlled by the literal meaning of the language of the statute, but by its spirit and the intention of the law. "That which is within the letter, although not within the spirit, is not within the statute." 59 Corpus Juris 966. Or, as said in Davis & Co. v. Thomas, 154 Ala. 279, 45 So. 897, 898: "It will not do to be governed uniformly by the literal expression of a statute; for by so doing we should many times wander entirely from the obvious intention of the Legislature." And like expressions are to be found in City of Birmingham v. Southern Express Co., 164 Ala. 529, 51 So. 159.

In 43 Corpus Juris 585, may be found numerous illustrations tending to show that the words "any ordinance" of this general statute are not to be accepted literally as written. "For obvious reasons only such an ordinance, by-law, or measure may be submitted as within the power of a municipal council to pass or adopt; if it would not be valid if adopted by the council, its infirmities cannot be cured by an affirmative vote of the electors." 43 Corpus Juris 585. And other illustrative cases may be found cited in the note to Keigley v. Bench, Utah, 89 P.2d 480, 122 A.L.R. 756, wherein it is observed that it is the general rule that initiative and referendum provisions are applicable only to acts which are legislative in character, and are inapplicable to those dealing with administrative or executive matters.

The city's argument is based upon the theory that, conceding for the moment, the validity of the statute, it is not in the first place to be construed as applicable to the subject of taxation, which includes the duty of budgeting the city's financial affairs, requiring special study, citing in this connection, State v. City of St. Petersburg, 106 Fla. 742, 144 So. 313, 671, 145 So. 175; General Acts 1915, page 320, as amended by Gen.Acts 1927, page 491; Gen.Acts 1932, Ex.Sess., page 203; Gen.Acts 1935, page 155; Opinion of the Justices, 232 Ala. 56, 166 So. 706. To which may be added Denman v. Quin, Tex.Civ.App., 116 S.W.2d 783; Swain v. Fritchman, 21 Idaho 783, 125 P. 319, and State v. Regan, 317 Mo. 1216, 298 S.W. 747, 55 A.L.R. 773, cited in note 122 A.L.R. 772, 773.

And, in the second place, the city urges that conceding tax matters are included within the statute that a mere repealing ordinance, as here proposed, was not in contemplation as it does not give the voter a proper choice so that an election would record the majority sentiment upon any one tax--cigars, cigarettes or smoking tobacco--with reliance upon Town of Woodlawn v. Cain, 135 Ala. 369, 33 So. 149.

These questions, however, present debatable ground, and upon which a difference of view may well arise.

There is one question, however, upon which perfect harmony of view should prevail, controlling in this case and in line with the trial court's ruling, based upon a principle of law fundamental in our system, both State and federal; that is, that a valid contract obligation is not to be destroyed or impaired by subsequent legislation. "If a general law providing for a referendum is in conflict with a special statute relating to the same subject matter and passed at the same session, and making no provision for a referendum, the special statute will prevail." 43 Corpus Juris 585. While the cited authority (Perrault v. Robinson, 29 Idaho 267, 158 P. 1074) is not entirely analogous here, yet it serves as an illustration upon the question of legislative intent.

In 1915, we have a general initiative and referendum statute. Later (Gen. and Loc. Acts 1921, page 6; Section 2011, Code of 1923; Gen. Acts 1927, pages 515, 516; Gen. Acts 1932, Extra Session page 203) a statute was adopted authorizing any town or city to borrow money for temporary or other lawful purposes, issue notes therefor, and pledge as security any authorized special tax or license, and as a part of the contract may "agree to annually levy, collect and apply," such tax or license to the payment thereof, so long as the same or any part thereof remains unpaid. Of similar import is section 1897, Code of 1923, as amended by General Acts 1935, page 155.

It is without controversy that the city, being in financial stress, borrowed from two banks a sum largely in excess of half a million dollars, and pledged the tax and license revenue as authorized by these statutes, including the tobacco license here involved.

While these notes were outstanding, secured by a pledge of this license tax, appellant sought a repeal of the ordinance under the initiative and referendum feature of the general statute.

If, as a matter of course, the tobacco license schedule is subject to repeal in this manner by vote of the qualified electors, then all other license schedules would be subject to a like treatment, and, if so repealed, the pledge of these taxes as security for the borrowed money would be practically destroyed. Yet that the money was borrowed, and the pledge made in good faith, and in strict conformity to the law, is not controverted.

But appellant answers that any constitutional objection based upon impairment of contracts can be raised only by the banks which are more vitally interested, and direct attention to Braxton County Court v. State of West Virginia, 208 U.S. 192, 28 S.Ct. 275, 52 L.Ed. 450, holding to the general proposition that constitutional questions may be only raised in the courts by one adversely affected by the decision.

As the financial credit of the city may well be said to be at stake, we are not prepared to say the city would not be a party adversely affected. 17 Corpus Juris 797. But we need not stop to make inquiry upon that matter, and leave it to one side. This for the reason that we are dealing here with the question of legislative intent.

Appellant insists it is entirely a matter of legislative control, and the inquiry here concerns the legislative mind upon such a situation. Appellant argues that the existing statute as to the initiative is to be read into all subsequent acts and conduct. But then again comes the inquiry--what did the lawmakers intend by these later statutes?

It is clear enough the lawmakers did not intend by the initiative feature of the general statute to authorize an ordinance at variance with our Constitution and out of harmony with so fundamental a principle as the non-impairment of contracts. And it is equally clear the legislature did not intend to grant authority to pledge the tax and its continuous levy for borrowed money, and at the same time say to the lender the authorized pledge may be repudiated by the initiative and referendum and the pledge subject to be destroyed. Certainly, in reason and common sense, the power to repeal a tax cannot co-exist with a power of the city commission to pledge the tax and agree to its continuous levy. These later statutes must, therefore, be construed as superseding any initiative feature of the general law. Illustrative cases are cited in note in 122 A.L.R. 781.

Such being the construction of the statute under the circumstances here disclosed without dispute, and being decisive of the case, all other questions are left to one side and undetermined. It follows, therefore, that petitioners were not entitled to further press the petition for an election, and the only remaining question relates to the remedy.

As originally enacted (section 8, ...