Hawkins v. Roberts & Son

Citation27 So. 327,122 Ala. 130
CourtSupreme Court of Alabama
Decision Date10 May 1899
PartiesHAWKINS, COUNTY TREASURER, v. MORROW ET AL. v. EARLE ET AL. ROBERTS & SON.

Appeals from city court of Birmingham; W. W. Wilkerson, Judge.

Petition for mandamus by Roberts & Son, a corporation, against Kenneth F. Hawkins, county treasurer; and proceedings in the nature of quo warranto by William S. Morrow and others against Paul H. Earle and others. From an order sustaining a demurrer, and from a final decree awarding mandamus, Hawkins appeals; and from a judgment against Morrow and others, they appeal. Affirmed.

These two causes, involving precisely the same questions, were submitted together. The first suit brought was that of Roberts & Son against Kenneth F. Hawkins, county treasurer of Jefferson county. Roberts & Son, a corporation, filed a petition, asking for a mandamus to compel the defendant, K F. Hawkins, as county treasurer of Jefferson county, to pay a warrant issued to said Roberts & Son by the board of revenue of said county. The petition alleged that said Hawkins declined to pay such warrant, solely on the ground that the act creating the board of revenue of Jefferson county was unconstitutional and void, and all the allegations of the petition were admitted by the answer of said Hawkins. The answer set forth, at great length, the grounds on which the act was supposed to be unconstitutional. Petitioner demurred to the answer on the grounds, substantialty, that it appeared from the statements of the answer that all the averments of the petition were true and that the act creating the board of revenue was not open to any of the objections set up by the respondent, and that it was not invalid for any other reason. The court below sustained the demurrer of the petitioner and respondent, declining to plead further, judgment final was rendered, awarding the mandamus prayed for.

In the other case, William S. Morrow, L. D. Lacey and W. H. Crook brought an information in the nature of a writ of quo warranto against Paul H. Earle, Chambers McAdory, John B Elliott, High McGeever and William C. Ward, setting up that the defendants, under the name and style of the board of revenue of Jefferson county, were usurping and exercising certain public offices created and existing under the laws of the state, to wit, the offices of commissioners of the court of county commissioners in and for said county of Jefferson that said defendants were claiming the right to act as such board of revenue under and by virtue of an act of the general assembly of Alabama, which created said board of revenue and abolished the court of county commissioners of said county but that said act was invalid for the reason that it violated certain provisions of the constitution of the state of Alabama, as well as that of the United States. The supposed particulars in which the act is in contravention of the state and federal constitutions are set out at length in the complaint.

The defendants demurred to the complaint or information upon several grounds, which presented in different phases the one proposition, that the act in question was not, in any wise, violative of either the state or federal constitution. This demurrer was sustained, and the relators declining to amend their declarations, judgment was rendered denying them the relief prayed for. The other facts of the case are sufficiently stated in the opinion.

In the appeal in the case of Roberts & Son against Hawkins, the respondent assigns as error the sustaining of the petitioner's demurrer to his answer, and the rendition of the final decree awarding the mandamus prayed for.

In the case of Morrow against Earle, the relators assign as error the sustaining of the respondents' demurrer to the declaration or complaint and the rendition of final judgment denying the relief prayed for.

Head & Wood and Bowman & Harsh, for appellants.

Cabaniss & Weakley, for appellees.

HARALSON J.

It is admitted on both sides, that the question presented to us for review in each of the above-entitled causes, is the constitutionality of the act, approved February 18, 1899, entitled "An act to establish a board of revenue for Jefferson county, and for the abolishment of the court of county commissioners of said county."

We allow the appellants to state their objections to the constitutionality of said act, in their own language, as we find them in their brief on file:

(1) "That it violates article 7, particularly section 3 thereof, of the constitution of the state of Alabama, in that, if enforced, it would have the effect of removing the then incumbents, members of the commissioners' court, from their offices without judicial trial as guarantied by said article."

(2) "That it is violative of sections 1 and 2 of article 4 of the constitution of Alabama, distributing the powers of the government, in that, if enforced, the effect of the act would be usurpation by the legislature of judicial power."

(3) "That it is in violation of section 7 of article 1 of the constitution of Alabama, either alone or considered in connection with the right secured said commissioners by said article 7 aforesaid, in that it would deprive the said commissioners of their property without due process of law."

(4) "That it is violative of section 2 of article 4 of the constitution of Alabama, in that it contains two subjects, and that its subject is not clearly expressed in the title."

(5) "That it is in violation of so much of article 14 of the constitution of the United States which provides that, 'no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws;' particularly the second and third of these inhibitions, more particularly the third."

1. Collateral to the inhibitions of the federal constitution last referred to, counsel refer to a matter which, better than elsewhere, we may dispose of at this point, in order to clear the case of it, as not being a proper subject of consideration in determining the validity of the act in question. They say: "Touching these inhibitions, we hope to show further on, upon reaching this branch of the argument, in the light of ample adjudications of the highest federal court, first, that the second and third, especially the third, inhibition complained of, were committed by the legislature itself, as shown upon the face of the act, without regard to anything extrinsic; and second, that they were committed, in a legal sense, by the chief executive of the state of Alabama, acting for and as an agency of the state, or by said chief executive and the legislature combined, as shown by the terms of the act itself and its approval, in connection with extrinsic and contemporaneous history, competent to be considered, which will be presented to the court for its convenience, in connection with this brief." Attached to the brief is a printed pamphlet of 55 pages, purporting to contain the "report on the books and accounts of the court of county commissioners, by James G. Cowan, assistant examiner of public accounts, filed in the office of the governor on Friday the 20th day of January, 1899, together with the message of the governor transmitting the same to the general assembly."

Sections 1876-1879, inclusive, of the Code, relate to examiners of public accounts, and their duties. Section 1876 provides, that these officers,-the examiner and assistant examiners to be appointed by the governor,-shall, under his direction, whenever required to do so, audit and examine the books, accounts and vouchers of the secretary of state, auditor, treasurer and all other state officers, and also of the University of Alabama and other public institutions of the state. It also provides, that "the governor shall have authority to direct and control the examiner, and when he deems it necessary may require him to examine the accounts of any state or county officer, charged with the duty of collecting or disbursing any part of the public revenues." Section 1879, provides, that "the examiner and assistant examiners shall, from time to time, report to the governor, under oath, the result of their examination, and the true condition and state of the books and accounts examined at the time of their examinations; such reports shall be public records. Before each session of the general assembly, the governor may cause seven hundred and fifty copies of such reports with such explanations and comments as the governor may think proper, to be printed for the use of the general assembly," etc.

In his report, the examiner specifies many instances of extravagance and reckless and improper expenditure of the moneys of the county, which charges, the governor incorporated in his message, adding, among other things, in conclusion: "The remedy for this state of affairs is in your hands. At this, and previous sessions, commissioners' courts have been abolished for unfaithfulness, against whom, not one-half the wrongdoing was even alleged that is here shown by the sworn report of a capable, honest and courageous official, and after giving the commissioners every opportunity to explain. *** I recommend that you at once abolish this court and establish a board of revenue, permitting the voters at the next general election to elect members thereof." Attached also to this pamphlet, is another of 24 pages in length, purporting to be the report of the senate committee on house bill to establish a board of revenue for Jefferson county, etc., showing the proceedings of that committee and their report to the senate.

It is not pretended,...

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