Leonard v. Lyons

• Decision Date: 30 June 1920
• Docket Number: 7 Div. 96
• Citation: 204 Ala. 615,87 So. 99
• Parties: LEONARD v. LYONS.
• Court: Alabama Supreme Court

87 So. 99

204 Ala. 615

LEONARD v. LYONS.

7 Div. 96

Supreme Court of Alabama

June 30, 1920

Rehearing Denied Oct. 28, 1920

Appeal from Circuit Court, Shelby County; E.J. Garrison, Judge.

Petition by J.M. Lyons for mandamus to J.M. Leonard, Jr., as Chairman of the Democratic Executive Committee, for mandamus to compel him to certify petitioner's name to the proper authorities as the nominee of the Democratic party for commissioner in district No. 1. From decree awarding the writ respondent appeals. Affirmed.

Thomas J., dissenting.

J.J Mayfield, of Montgomery, and Acuff & Luck, of Columbiana, for appellant.

J.L Peters, of Columbiana, for appellee.

PER CURIAM.

The majority of the court, composed of ANDERSON, C.J., McCLELLAN SAYRE, SOMERVILLE, GARDNER, and BROWN, JJ., are of the opinion that the notice of the intention to apply for the passage of the act was a sufficient compliance with section 106 of the Constitution. The fact that it purported to make the commissioners of the county elective did not render the same insufficient, because the act makes some of the members elective from districts instead of from the county at large.

Nor do we think that the act violates section 45 of the Constitution by attempting to amend or revive the act of 1891 without setting out so much thereof as is revived or amended. It does not purport to amend or revise the act of 1891, and the mere fact that it refers to certain districts which had been established under the authority of the act of 1891 does not constitute an amendment or revision of same, and is a mere reference to the established districts under the act as it existed. This question is fully treated in State v. Rogers, 107 Ala. 444, 19 So. 909, 32 L.R.A. 520, and repetition of the argument there made is unnecessary. Cobb v. Vary, 120 Ala. 263, 24 So. 442; Hasty v. Marengo County, 86 So. 37 (present term).

The judgment of the trial court in awarding the mandamus is accordingly affirmed.

Affirmed.

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

THOMAS J. (dissenting).

This is a proceeding by mandamus seeking to compel the chairman of the Democratic executive committee of Shelby county to certify the name of petitioner to the probate judge of said county as the nominee to the office of board of revenue from district No. 1. The respondent made answer, the substance of which was that an act of the Legislature of 1919 (Local Acts, pp. 115, 116) is unconstitutional and void because of its provisions regarding the districts of the county, and that the same is a local act of which no sufficient notice was published as required by section 106 of the Constitution. Demurrer to the answer was overruled, and the relief prayed was granted.

No question is made as to relator's having pursued the proper remedy by mandamus.

It was the appropriate way petitioner sought, after nomination by his party, to have his name certified as such nominee to the proper official so as to have it placed on the ballot at the coming election. Dunn v. Dean, 196 Ala. 486, 71 So. 709. It has been decided by this court that the writ will be awarded to correct an erroneous ruling of a court where injury results and there exists no right of appeal or other adequate means of redress. Ex parte Jones, 133 Ala. 212, 32 So. 643; Ex parte Woodruff, 123 Ala. 99, 26 So. 509; Wilson v. Duncan, 114 Ala. 659, 21 So. 1017; Ex parte Tower Mfg. Co., 103 Ala. 415, 15 So. 836; Ex parte Hayes, 92 Ala. 120, 9 So. 156.

Is the title of the act of September 10, 1919, misleading as to its subject? Const. § 45; Patton v. State, 160 Ala. 111, 114, 49 So. 809; L. & N.R.R. Co. v. Grant, 153 Ala. 112, 117, 45 So. 226; Ballentyne v. Wickersham, 75 Ala. 533; Ex parte Pollard and Ex parte Woods, 40 Ala. 77, 98; Cooley's Const. Lim. (7th Ed.) p. 212. The Constitution exacts of the Legislature an announcement in the title of the subject, "but does not dictate any degree of particularity. This is a matter left to legislative discretion. *** The object of the constitutional provision was to prevent deception by the inclusion in a bill of matter incongruous with the title. The evil contemplated was not the generality and comprehensiveness of titles. These faults do not tend *** to deceive." Ex parte Pollard and Ex parte Woods, supra. In Ballentyne v. Wickersham, supra, Judge Stone declared that--

"This court has committed itself in favor of the following propositions, which are in harmony with the rulings elsewhere in the best-considered cases: That the clause is mandatory. That its requirements are not to be exactingly enforced, or in such manner as to cripple legislation. That the title of a bill may be very general, and need not specify every clause in the statute. Sufficient if they are all referable, and cognate to the subject expressed. And when the subject is expressed in general terms, everything which is necessary to make a complete enactment in regard to it, or which results as a complement of the thought contained in the general expression, is included in and authorized by it."

In Lindsay v. United States Savings & Loan Ass'n, 120 Ala. 156, 172, 24 So. 171, 176 (42 L.R.A. 783), the threefold purposes of the constitutional requirements stated by Judge Cooley are said to be:

"First, to prevent 'hodgepodge' or 'logrolling' legislation; second, to prevent surprise or fraud upon the Legislature by means of provisions in bills of which the titles give no intimation, and which might therefore be overlooked, and carelessly and unintentionally adopted; and, third, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have the opportunity of being heard thereon, by petition or otherwise, if they shall so desire."

The title of the act in question (Local Acts 1919, p. 115) is:

"To amend sections 2 and 3 of an act entitled 'An act to establish a board of revenue for Shelby county, and to abolish the court of county commissioners thereof,' passed at the session of 1911, being in local acts of Alabama, page 154, said amendment making the president and members of said board elective by the qualified voters of said county, and fixing the term of office of said president and members of said board and the time of their election and providing that in case of a vacancy in the office of president or a member of said board, and providing further that the president and members of the board now holding office shall hold their said office until their successors are elected and qualified under the provisions of this act."

The body of the act under review was:

(1) That section 2 of said act (Local Acts 1911, p. 154) be amended so as to read as follows:

"2. The president of said board shall be elected as hereinafter provided by the qualified electors of said county, and one member shall be elected by the qualified voters of each of the four districts of the county as now constituted, by virtue of the authority granted in Acts of the Legislature 1890-91, § 1, p. 354."

By section 2 of the act of 1911 "to establish a board of revenue for Shelby county, and to abolish the court of county commissioners thereof," the president and members of this board of revenue were required to be "appointed by the Governor" for the term of four years, and in case of "a vacancy in the office of a member of the board, that it shall be filled by appointment of the Governor, for the unexpired term."

(2) That section 3 of said act (local act of 1911) be amended so as to read as follows:

"The president and members of said board for districts 2 and 4 shall be elected at the general election 1920, and their term of office shall begin on the first Monday after the second Tuesday in January, 1921, and they shall hold office until first Monday after second Tuesday in January, 1923; thereafter the president and members for districts Nos. 2 and 4 shall be elected at the general election for said county in 1922, and every four years thereafter, and their term of office and that of their successors shall begin on the first Monday after the second Tuesday in January next after their election, and they shall hold office for four years and until their successors are elected and qualified. The members of said board for districts 1 and 3 shall be elected at the general election held for said county in the year 1920, and every four years

thereafter, and their term of office and that of their successors shall begin on the first Monday after the second Tuesday in January next after their election, and they shall hold office for four years and until their successors are elected and qualified."

That section of the act of 1911 (section 3) so amended was:

"Within fifteen days after the approval of this act the president and two members of the board shall be appointed for a term of four years from the date of their appointment and till their successors are appointed and qualified, and in like manner their successors shall be appointed every four years thereafter for a term of four years, and two members of the board shall be appointed for a term of two years from the date of their appointment and till their successors are appointed and qualified, and like manner their successors shall be appointed every four years thereafter for a term of four years."

It is apparent that when the Governor (within 15 days after the act of 1911 became a law without his approval, under section 125 of the Constitution) appointed a president and two members of the board for a term of four years from the dates of their appointment and until their successors were appointed and qualified, and thereafter, in like manner, appointed their...