Mayor and Aldermen of West End v. Simmons

• Decision Date: 13 February 1910
• Citation: 51 So. 638,165 Ala. 359
• Parties: MAYOR & ALDERMEN OF WEST END v. SIMMONS.
• Court: Alabama Supreme Court

51 So. 638

165 Ala. 359

MAYOR & ALDERMEN OF WEST END v. SIMMONS.

Supreme Court of Alabama

February 13, 1910

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by the Mayor and Aldermen of West End against J. C. Simmons. Judgment for defendant, and plaintiff appeals. Affirmed.

C. B Powell, for appellant.

F. S Ferguson, for appellee.

SAYRE J.

On September 29, 1903, the Governor signed what purported to be an enactment of the Legislature, entitled, "An act to alter and rearrange the boundaries of the city of West End Jefferson county, Alabama," the effect of which was to bring certain territory within the limits of the city. Thereafter the appellee did business as a dealer in coal in the added territory without having paid a license tax therefor as was required by an ordinance of the city. Appellee being prosecuted therefor, the circuit court, on appeal, held the act to be void, because not passed in accordance with the Constitution. By this appeal the city draws that ruling into question.

The act signed by the Governor contained three sections. If there were nothing else to be looked to, the presumption would be conclusive that the act as enrolled and signed by the Governor is the act passed by the Legislature. But an inspection of the journals of the two houses reveals the fact that they never intended to, nor did in fact, vote for the enactment of the bill as approved by the Governor, but that by some inadvertence the enrolled copy of the act which reached his hands was rendered defective by the omission of four sections which had been put into the bill by amendment. The purpose and effect of the amendatory sections was to make the proposed addition of territory to the city dependent upon the approval of the people of the territory, to be expressed at an election for which provision was made. This was an amendment of utmost materiality; and, if it were less palpably material, it would not become our office to speculate upon the degree of importance attached to it in the legislative mind. The fact adverted to appears in the following manner: On October 3, 1903, the House and Senate concurred in a resolution which recited the fact that sections 4, 5, 6, and 7 had been by inadvertence omitted from the bill, setting out the language of the omitted sections and provided that "the said bill be enrolled and signed by the Speaker of the House and the President of the Senate and be...