Henry v. State

• Decision Date: 28 January 1928
• Docket Number: 6 Div. 45
• Citation: 117 So. 626,218 Ala. 71
• Parties: HENRY, County Treasurer v. STATE ex rel. HARTSFIELD.
• Court: Alabama Supreme Court

117 So. 626

218 Ala. 71

HENRY, County Treasurer v. STATE ex rel. HARTSFIELD.

6 Div. 45

Supreme Court of Alabama

January 28, 1928

Rehearing Granted June 28, 1928

Appeal from Circuit Court, Jefferson County; Richard V. Evans and William M. Walker, Judges.

Petition of the State, on the relation of J.C. Hartsfield, for mandamus to M.V. Henry, as Treasurer of Jefferson County. From a judgment granting the writ, respondent appeals. Transferred from Court of Appeals under Code 1923,§ 7310. Affirmed on rehearing.

Anderson C.J., and Sayre, J., dissenting.

Cabaniss Johnston, Cocke & Cabaniss, of Birmingham, for appellant.

Mullins & Jenkins, of Birmingham, for appellee.

PER CURIAM.

While an attempt is made to clothe the act in question with generality by making it applicable to all counties that now have, or may have, more than 200,000 population, upon the classification theory it cannot possibly apply, in the present or future, to any county in the state, unless some other county not only attains 200,000 inhabitants, but also procures the adoption of an amendment to section 96 of the Constitution and perhaps other sections. As the act of necessity applies to Jefferson county alone, present and future, it is unquestionably a local law under section 110 of the Constitution, and, as no notice was given of an intention to apply for the passage of same as required by section 106 of the Constitution, it was not validly enacted. Birmingham Electric Co. v. Harry, 215 Ala. 458, 111 So. 41; Opinion of Justices, 216 Ala. 469, 113 So. 584. Indeed, the Harry Case was referred to and construed in such opinion, supra, as holding that similar acts were local, and could not be validly enacted, unless notice was given as required by section 106 of the Constitution, and this opinion was addressed to, and received by, the Legislature long before the passage of the act in question, and should have removed all misleading tendencies of the opinion on rehearing in the Harry Case, supra, if any there were.

It is true the Jefferson county amendment authorizes the fixation of the salaries by a general or local law, but said amendment does not displace or modify sections 106 and 110 of the Constitution so as to do away with the necessity for a compliance therewith in case resort is had to a local law.

Long prior to the adoption of the constitutional amendment of November 16, 1912 (see Gen.Acts 1911, p. 47), providing that "the Legislature of Alabama may hereafter, from time to time, by general or local laws fix, regulate and alter, etc these terms, 'general,' and 'local,"' laws had been defined by section 110 of the Constitution as follows: "A general law within the meaning of this article is a law which applies to the whole state, a local law is a law which applies to any political subdivision or subdivisions of the state less than the whole," and this court had by repeated decisions sustained this definition, and held void all such local laws as were not passed in compliance with section 106 of the Constitution. Therefore it must be assumed that the Legislature, in preparing the Jefferson county amendment, and the people in adopting it, were familiar with the provisions of the Constitution, and used these terms in the sense they are defined by section 110.

The response in the Harry Case and reference to other acts was merely arguendo, and did not destroy the integrity or force of the real holding as set forth in the original opinion. We are not advised that the point here considered has ever been decided contrary to the present holding in passing upon the said acts. But, if said acts, or any of them, possess the infirmity involved in the present one, that fact should not, and could not, deter this court from correctly deciding the present issue; each tub must stand upon its own bottom.

We are constrained to hold that the act is repugnant to sections 106 and 110 of the Constitution, and the trial court erred in awarding the mandamus, and the judgment of the circuit court is reversed, and one is here rendered denying the writ of mandamus.

Reversed and rendered.

ANDERSON, C.J., and SAYRE, and SOMERVILLE, and BROWN, JJ., concur.

Thomas J. (dissenting).

It is a general rule of constitutional construction that the court will hold valid a statute--relating to governmental policy or conduct of public officers--unless convinced beyond a reasonable doubt that it is unconstitutional. The burden is on him who attacks a statute to show the provision of organic law that such legislative enactment offends. Macon County v. Abercrombie, Judge, 184 Ala. 283, 63 So. 985; Walden v. City of Montgomery, 214 Ala. 409, 108 So. 231. See Williams, Probate Judge, v. Schwarz, 197 Ala. 45, 47, 72 So. 330, Ann.Cas.1918D, 869, for authorities.

It is further established that a legislative construction evidenced by a re-enactment, etc., will be given due consideration or great weight, that is to say, a legislative construction of a constitutional provision is not accepted as final and binding by the judiciary, yet such construction is influential when the provision is of doubtful meaning or effect, and the Legislative interpretation of that provision has not been questioned, acquiesced in, and acted upon for a considerable period. On the other hand, it is the law that a legislative construction can have no effect against the plain mandate of the Constitution. Ex parte Hardy, 68 Ala. 303; Moog v. Randolph, 77 Ala. 597; Board of Revenue of Jefferson County v. Huey, 195 Ala. 83, Jones v. McDade,

200 Ala. 230, 235, 75 So. 988; Willett v. Weaver, 205 Ala. 268, 87 So. 601; Board of Revenue v. Hewitt, 206 Ala. 405, 90 So. 781; State ex rel. Brooks v. Gullatt, 210 Ala. 452, 98 So. 373.

The rules stated in Ex parte John Hardy, supra, are, that Constitutions are to be construed in the light of common law and of previously existing Constitutions; that provisions designed for the protection of life, liberty, and property are to be liberally construed in favor of the citizen, thus differentiating such personal rights from governmental policies, administrative functions, and conduct of public office and the rule of constitutional construction and presumptions obtaining or applicable thereto; and "the uniform legislative interpretation of doubtful constitutional provisions, running through many years, is of weighty consideration with the courts, as is also the contemporaneous exposition of the bar, and the acquiescence of the bench. Contemporanea expositio est optima et fortissima in lege. 2 Inst. 11; Cooley's Const.Lim. 81." See Cooley's Const.Lim. (7th Ed.) pp. 70, 105; Ex parte John Hardy, 68 Ala. 303, 318. The foregoing rules are adhered to in this jurisdiction. Ward v. McDonald, 201 Ala. 237, 244, 77 So. 827; Jones v. McDade, 200 Ala. 231, 235, 75 So. 988; Goolsby v. State, 213 Ala. 351, 353, 104 So. 901.

The effect of the Jefferson county salary amendment to the Constitution is:

"The Legislature of Alabama may hereafter, from time to time, by general or local laws, fix, regulate and alter the costs, charges of courts, fees, commissions, allowances or salaries to be charged or received by any county officer of Jefferson county, including the method and basis of their compensation." Gen.Acts of 1911, p. 47.

The adoption of that amendment in November, 1912, authorized the Legislature, by general or local laws, to regulate, fix, and alter (1) the costs and charges of courts; (2) the fees, allowances, commissions, or salaries to be charged or received by any county officer; (3) and including the method or basis of their compensation; (4) and these changes may be made from "time to time" as the Legislature may enact.

The case of Sloss-Sheffield S. & I. Co. v. Brooks, 19 Ala.App. 109, 96 So. 81, was affirmed on certiorari by this court. Ex parte Sloss-Sheffield S. & I. Co., 209 Ala. 264, 96 So. 82. The statute approved was to permit the circuit clerk to charge a fee for collecting a judgment not paid in 30 days. Gen.Acts 1919, pp. 884, 885. It was declared that under this amendment to the Constitution the Legislature could pass a general law increasing fees of county officials without offending the uniformity sections, and that as to special, private, and local laws (sections 96, 104) of the Constitution, and that the Legislature could authorize and make increases of fees and compensation of county officials of Jefferson county during the term of their office, for which they shall have been elected or appointed, and not offend section 68 and section 281 of the Constitution. It was declared of the last indicated sections of the Constitution:

"This court has expressly held that the provisions of the act now under attack did not violate section 281 of the Constitution of 1901. Riley et al. v. L. & N.R. Co., 18 Ala.App. 279, 92 So. 23. And, it, of necessity, follows that with respect to the contention here urged it does not infringe upon the limitations contained in section 68 of the Constitution of 1901."

In the thus approved case of Riley v. L. & N.R. Co., 18 Ala.App. 279, 92 So. 23, upon authority of the Jefferson county salary amendment, and the local act of 1915 (Local Laws, p. 374), which placed the compensation of the judge of probate, sheriff, clerk, tax assessor, and tax collector on a salary basis and required costs, fees, and charges to be paid into the county treasury by the officer collecting the same, it was held that a commission collected by the clerk, on a delinquent judgment, authorized by Gen.Acts 1919, p. 884, was not an increase in the clerk's fees or compensation during his term of office that violated section 281 of the Constitution so far as concerned Jefferson county and its said official.

In Waldrop v. Henry, 207 Ala. 128, 92 So. 425, it was...