Hudgens v. State

• Decision Date: 01 August 1916
• Docket Number: 4 Div. 471
• Citation: 72 So. 605,15 Ala.App. 156
• Parties: HUDGENS v. STATE.
• Court: Alabama Court of Appeals

72 So. 605

15 Ala.App. 156

HUDGENS v. STATE.

4 Div. 471

Court of Appeals of Alabama

August 1, 1916

Appeal from Probate Court, Crenshaw County; F.M.T. Tankersley Judge.

Thomas Hudgens, being arrested on warrants charging violation of Loc.Acts 1915, p. 85, petitioned the probate court for writ of habeas corpus, and from the judgment denying the petition he appeals. The Court of Appeals submitted a quaere to the Supreme Court, and upon return of response thereto the judgment was affirmed.

The Court of Appeals, being of the opinion that an act, entitled "An act to provide for the more efficient working of the public roads of Crenshaw county," etc., approved September 22, 1915 (Local Acts 1915, p. 403 et seq.), is invalid as not having been passed according to constitutional requirements, does, pursuant to section 1 of an act entitled "An act to regulate appeals," etc., approved April 18, 1911 (General Acts 1911, p. 449 et seq.), hereby certify to the Supreme Court as an abstract proposition the following quaere:

Is the act entitled "An act to provide for the more efficient working of the public roads of Crenshaw county," etc (Local Acts 1915, p. 403 et seq.), or any section thereof invalid for not having been passed according to constitutional requirements (sections 106, 107) as shown by the House and Senate Journals; that is to say:

First. When a notice of a proposed local bill is published and proof thereof is spread upon the journals and a local bill embodying the substance of said notice is enacted into law, can a second law along the lines of the first be enacted and sustained constitutionally upon the journals showing a notice in all respects the same as the first as to text, time, and place of publication, and there being no proof that said notice had more than one insertion or publication; or will said notice be presumed to be one and the same and functus officio upon the enactment into law of the first bill and the second law in consequence thereof be invalid?

Second. Is section 6 of Local Acts 1915, p. 403--which undertakes to repeal a prior act, i.e., Local Acts 1915, p. 85--valid and sufficient to accomplish, under the Constitution, the repeal; that is to say, does the notice published as aforesaid comply with the requirement of the Constitution, section 107, as to notice of repeal of a local act?

Per Curiam Response of the Supreme Court.

This court is of the opinion that the notice given as to the proposed bill first enacted became functus officio upon the enactment of said bill. Therefore the said notice and proof of the publication of same, before the passage of said first local law, could not be used to obviate the necessity for complying with sections 106 and 107 of the Constitution of 1901, as to the required publication and proof of the notice essential to the validity of the second enactment. We hold that publication and proof of the notice as to the proof as to the first enactment did not dispense with a separate and distinct notice as to the substance of the second enactment, for four consecutive weeks, and proof thereof as required by section 106 of the Constitution. All the Justices concur, except SAYRE, J., not sitting.

G.O. Dickey, of Luverne, for appellant.

William L. Martin, Atty. Gen., and Powell & Hamilton, of Greenville, for the State.

EVANS J.

Appellant was arrested upon warrants charging him with having violated provisions of "An act to provide for the more efficient working of the public roads of Crenshaw county," etc. Local Acts 1915, p. 85. Section 1 of said act imposes the duty of working said roads, or in lieu thereof to pay a commutation fee of $5, section 2 imposes a vehicle license tax, and section 3 imposes a dog tax of $1 on each dog kept in said county. The failure or refusal to comply with any of the requirements of these several sections is made a misdemeanor. Upon his arrest, appellant filed a petition in the probate court of Crenshaw county, praying a writ of habeas corpus to inquire into the legality of his detention, setting up that the act under which he was arrested was unconstitutional and the warrants issued thereunder were null and void. The act under which the warrants were issued (Local Acts 1915, p. 85 et seq.) was apparently and in terms repealed by a subsequent act, entitled "An act to provide for the more efficient working of the public roads of Crenshaw county," etc., approved September 22, 1915. Local Acts 1915, p. 403 et seq. For convenience, the act under which the warrants were issued will be at times hereinafter referred to as the first act and the subsequent or repealing act as the second act.

As will appear from an examination of the House and Senate Journals, the first act was passed with all the formalities prescribed by the Constitution. It is insisted, however, by appellant that the published notice appearing upon said journals does not sufficiently set forth the substance of said act to satisfy the requirements of section 106 of the Constitution. The published notice set forth an epitome or summary of the essential and material features of the proposed bill, leaving the minutiae and details to be worked out by the legislators. Speaking of this section of the Constitution, our Supreme Court observes:

"This section of the Constitution has destroyed all initiative in the Legislature in respect to those subjects of legislation which are required to be advertised. A narrow and literal construction would destroy, also, all power of amendment, so that the Legislature would be required to accept every such bill in the exact terms of its proposal. The Constitution does not proceed upon the theory that all the details of every proposed law should be worked out in advance and without the aid of legislative wisdom. It requires only that the local public shall be advised of the substance of the proposed law, of its characteristic and essential provisions, of its most important features. And this court has so held in a number of cases. Its language has been that the Constitution is complied with if the notice contain a fair compendium or abstract of the act in all its essential features. It has been said that the Constitution does not interfere with the

...