Jones v. Conradi

• Citation: 673 So.2d 389
• Parties: Jocelyn JONES, et al. v. Polly CONRADI, et al. 1940227.
• Decision Date: 26 May 1995
• Court: Supreme Court of Alabama

Page 389

673 So.2d 389

Jocelyn JONES, et al. v. Polly CONRADI, et al.

1940227.

Supreme Court of Alabama.

May 26, 1995.

Rehearing Denied Oct. 20, 1995.

Terry G. Davis and Amardo W. Pitters of Terry G. Davis, P.C., and Solomon S. Seay, Jr., Montgomery, for Appellants.

J. McGowin Williamson of Williamson & Williamson, Greenville, David Cromwell Johnson and Annsley H. Degaris of Johnson & Cory, Birmingham, for Appellees.

James D. Turner, Tuscaloosa, for Mary Faye Crowe.

KENNEDY, Justice.

The defendants, persons who sought election as deputy circuit clerks pursuant to Ala.Code 1975, § 17-2-8, ¹ appeal from a summary judgment in favor of the plaintiffs, who are circuit court clerks (the "circuit clerks"). Broadly stated, at issue is whether the defendants seek positions that do not exist under § 17-2-8, and in so doing, usurp the statutory authority of the circuit clerks to appoint persons to the position of deputy clerk.

Section 17-2-8 provides:

"In all counties having more than five circuit judges, there shall be elected, at each election when clerks of the circuit court are elected, a deputy circuit clerk, who shall hold office during the term of the circuit clerk of such county and until his successor is elected and qualified."

When this action was filed, five counties, including Jefferson County, had legislative authority for more than five circuit court judgeships: the 6th Judicial Circuit, composed of Tuscaloosa County; ² the 13th Judicial Circuit, composed of Mobile County; the 15th Judicial Circuit, composed of Montgomery County; and the 23rd Judicial Circuit, composed of Madison County. The defendants had qualified to seek election to the office of deputy circuit clerk in their respective counties or court division: two had qualified in Tuscaloosa County; one had qualified in Mobile County; two had qualified in Montgomery County; two had qualified in Madison County; and one had qualified in the Birmingham Division of Jefferson County. The circuit clerks hold the offices of circuit court clerk for Jefferson County, Montgomery County, Madison County, and Tuscaloosa County. ³

The circuit clerks sued the defendants for a declaratory judgment, averring that it was unlawful for "the individual defendants to seek to fill the office of elected deputy circuit clerk," because, they said, § 17-2-8 has been repealed, and, in any event, was never intended to provide for the existence of the elected deputy circuit clerk offices sought. Additionally, the circuit clerks complained that Alabama Code 1975, § 12-17-93, specifically empowers circuit court clerks to select and appoint persons for the deputy circuit clerk positions in question. They claimed that their rights would be "damaged irreparably if the individual defendants are allowed to run ... for the position of deputy circuit clerk." Accordingly, in addition to a declaratory judgment, the circuit clerks sought injunctive relief to prevent the defendants from running for the positions in issue. ⁴ Based on undisputed material facts, the trial court entered a summary judgment in favor of the circuit clerks, ruling, in pertinent part, that § 17-2-8 had been repealed by implication and enjoining the counting of any votes cast for the defendants. Seven of the defendants appealed. ⁵ They argue that the trial court erred in ruling that § 17-2-8 has been repealed, and they assert that § 17-2-8 is properly construed as having a state-wide applicability. The circuit clerks argue that what is now § 17-2-8 was repealed by implication years ago, and they suggest that, in any event, the legislature never intended for what is now § 17-2-8 to have statewide applicability, but intended for it to apply only to Jefferson County, to provide for the office of elected deputy circuit clerk for the "Bessemer Division," an office not sought by any of the defendants.

The legal import of what is now § 17-2-8 is critical to the resolution of this case. First, unless as a matter of law § 17-2-8 provides for the elected offices sought, whether it has been repealed is of no consequence. Stated differently, if it was intended to apply only to Jefferson County, to provide for an elected deputy circuit clerk for the Bessemer Division, then the defendants, all of whom seek office elsewhere in the state, would be seeking nonexistent offices.

Second, and as will become apparent, it would be necessary to understand the legal import of what is now § 17-2-8 in order to determine whether it has been repealed by implication.

Because the proper construction of § 17-2-8 is determinative, we begin with a discussion of this provision, which first appeared in Ala.Acts 1915 and which has been recodified in all subsequent Codes.

The Construction of § 17-2-8

Section 17-2-8 traces its roots to Ala.Acts 1915, No. 686, which provided for an elected deputy circuit clerk "in all counties that alone constitute a circuit in which there are more than three judges and the circuit court therein is held at the county site and at some other place in the county." Because this provision has a special meaning in relation to the 10th Judicial Circuit, we observe that for many decades, the 10th Judicial Circuit, which is composed of Jefferson County, has had the distinction of consisting of two separate divisions. One division is typically referred to as the "Birmingham Division" and the other is typically referred to as the "Bessemer Division" or the "Bessemer Cut-Off Division." Historically, the Bessemer Division has operated virtually as a separate judicial circuit, United Supply Co. v. Hinton Constr. & Dev., Inc., 396 So.2d 1047, 1049-50 (Ala.1981), and, the record indicates, is the only area where an elected deputy clerk has ever served.

In practice, Act No. 686 applied only to Jefferson County, which was the only county that met its requirements. No other county could meet its requirements in the future without additional legislation, ⁶ because no other county had more than three circuit judgeships. Indeed, notwithstanding the broad language of Act No. 686--providing literally for a deputy circuit clerk in "all counties" that met its requirements--in Brandon v. State, 233 Ala. 1, 173 So. 238 (1936), this Court clearly indicated that it was intended to be a local law, "applicable to the Bessemer Division." ⁷

In this regard, Act No. 686 was not unusual in using broadly inclusive language to advance a hidden, and far narrower, intent of local applicability. During the early part of this century, it was not unheard of for the legislature to pass enactments as "general" statutes "which were in effect and application necessarily local," Preface to Ala.Code 1923, p. vi, and which were intended to have only local applicability. In Henry v. Wilson, 224 Ala. 261, 263, 139 So. 259, 261 (1932), the Court recognized the existing practice of wording an act with "a cloak of generality" so as "to save the expense or publicity of local legislation." In 1934, the Court in Abramson v. Hard, 229 Ala. 2, 6-7, 155 So. 590, 593 (1934), cautioned: " 'It often happens that the true intention of the law-making body, though obvious, is not expressed by the language employed in a statute when that language is given its literal meaning.... [T]he real purpose and intent of the legislature will prevail over the literal import of the words.' " (Citation omitted.)

Given the foregoing, it is not surprising that the court in Brandon indicated that Act No. 686, the original source of what is now § 17-2-8, which was applicable by its literal terms to "all counties" that met its requirements, was in fact a local law, intended to provide for an elected deputy circuit clerk only in the Bessemer Division. At the time, the legislature had a notorious practice of enacting a provision intended as local, in the guise of a law of state-wide applicability, and "often" a court had to look beyond seemingly unambiguous language in such a statute in order to be able to discern and effectuate the legislature's "local" intent. ⁸ With this background, and given that absent future enactments, Act No. 686 could never apply anywhere other than the home of the Bessemer Division, Jefferson County, the Brandon Court's discussion of it as a local law seems not only unsurprising, but well founded.

From its original enactment in 1915, as Act No. 686, the next step in the progression of what is now § 17-2-8 occurred with the adoption of the Code of 1923. In Brandon, the Court indicated that Act No. 686, a local law, had been "codified" in the 1923 Code, at § 421. Although the provision as codified at § 421 was not a complete recitation of Act No. 686, ⁹ it was materially unchanged in pertinent part, and perhaps for this reason the Court in Brandon viewed it as a "codification or adoption" of an existing provision, rather than as a new provision. Clearly, the codification in the 1923 Code retained the same practical applicability as its predecessor, Act No. 686, because absent future legislation giving other counties additional circuit judgeships so that they would have more than three, only Jefferson County could meet its requirements. Section 421, 1923 Code, provided:

"In all counties having more than three circuit judges there shall be elected at each election when clerks of the circuit court are elected, a deputy circuit clerk, who shall hold office during the term of the circuit clerk of such county, and until his successor is elected and qualified."

As to this codification, § 421, we emphasize the import of the statement in Brandon--that it was a codification of an existing local law. This factor is critical to the proper construction of the applicability of § 421, and any subsequent codifications of it, including § 17-2-8. This Court has stated:

"We believe it is pertinent to point out that there exists, and has long existed, in this state, a principle that when the legislature readopts a code section, or incorporates it into a subsequent Code, prior ...