Parrish v. Faulk
| Decision Date | 05 December 1974 |
| Citation | 293 Ala. 401,304 So.2d 194 |
| Parties | Hilton R. PARRISH v. Wamon D. FAULK et al., as County Commissioners of Houston County, Alabama, and R. J. Stembridge, Judge of Probate of Houston County, Alabama. SC 969. |
| Court | Alabama Supreme Court |
J. Hubert Farmer, Dothan, for appellant.
Wm. G. Hause, Dothan, for appellees Wamon D. Faulk and Mark F. Tatum.
Jere C. Segrest, Dothan, for appellees A. A. Middleton, Harlie Halstead, Ed Tolar, Dorman Frith and Jack Wise.
Plaintiff appeals from an adverse decree in action for declaratory judgment.
Plaintiff seeks to have Act No. 779, approved September 5, 1973, declared void because it is a local act and was not passed in accord with the provisions of Section 106 of the Constitution of 1901.
Act No. 779 creates the office of commissioner of licenses in Houston County and provides for the method of issuing all licenses except marriage licenses.
As here pertinent, Section 106 provides as follows:
In the Journal of the House of Representatives, in the published notice, Section 2 of the proposed act recites as follows:
House Journal, 1973, Vol. 2, page 2039.
In the act as passed by the Legislature and approved by the Governor, Section 2 recites as follows:
Act No. 779, Acts of Alabama, 1973, Vol. II, at page 1190.
The issue presented is whether Act No. 779 violates Section 106 of the Constitution because of the variance between Section 2 of the act as advertised and Section 2 of the act as passed.
The trial court held that the act did not violate Section 106, and plaintiff appeals.
It is apparent that the version of Section 2 in the published notice informed the public that the holder of the office of commissioner of licenses would be chosen and appointed by the appointing board named in Section 2, and the commissioner of licenses so chosen and appointed would hold office '. . . at the pleasure of the appointing board . . .'
In the act as passed and approved, it is provided that the commissioner of licenses '. . . shall be elected at the next general election . . . and shall take office for a term of four years . . .' beginning on a specified day.
Between Section 2 as published and Section 2 as passed, there is a difference in the authority by whom the office of commissioner of licenses is to be filled and in the length of time the commissioner is to hold the office. In the published version, he is to be chosen by the appointing board composed of three named officials and is to hold office for an unspecified time at the pleasure of the appointing board. In the bill as passed, he is to be elected at the next general election for state officers. The act does not specify by whom he is to be elected. It appears to be assumed by the parties that the commissioner of licenses would be elected by the qualified voters of Houston County, but the act does not so specify. The act refers to the '. . . next general election for any state officers . . .'
Between the published and enacted versions of Section 2, there is a change in the length of time the commissioner of licenses is to hold office. In the published notice, he is to hold office for an unspecified term at the pleasure of the appointing board. In the act as passed, he is to hold office for a fixed term of four years.
In the published version of Section 2, any vacancy in the office is to be filled by the appointing board. In the enacted version of Section 2, filling a vacancy is not mentioned.
Of less significance perhaps is the difference in the published version and the enacted version with respect to fixing the salary of the commissioner. Both versions provide that the salary of the commisioner of licenses shall be fixed '. . . by the appointing board . . .' at $10,500.00 annually. The published version of Section 2 names three officers who are to constitute the appointing board, but the enacted version of Section 2 does not name any officers or persons who are to constitute the appointing board. A hiatus is thus created.
Plaintiff contends that the differences between the published and enacted provisions of Section 2 are substantial and render the act unconstitutional. Defendants contend that the difference are not such a material variance as to violate Section 106 of the Constitution.
In brief, appellees cite State v. Brooks, 241 Ala. 55, 1 So.2d 370, wherein this court held that Section 106 of the Constitution was violated in the passage of a local act in that the published notice of the act failed to give notice of its substance. In Brooks, this court cited Wallace v. Board of Revenue of Jefferson County, 140 Ala. 491, 37 So. 321, wherein in 1903, and for the first time, Section 106 was construed. In Wallace, this court, in considering the notice required by Section 106, among other things, said:
'This notice, as is seen, is required not only to be published for the length of time, and in the manner specified, and proof thereof made to each house of the Legislature, and spread upon the journals, but it is also required to 'state the substance of the proposed law.'
'. . .
'. . . It was always supposed that the people to be immediately affected by local legislation, ought to have notice of an intention on the part of any one desiring to apply to the Legislature for such legislation, which was often sought for private and improper ends, and not for the good of the people at large. Any notice, therefore, which falls short of advising the public of the substance of such legislation, would be deceptive or misleading, depriving those opposed to it, of a fair opportunity to protest against and oppose its enactment.
'The word 'substance' as employed in the section cannot be said to be synonymous with 'subject' or mere purpose. It means 'the essential or material part, essence, abstract, compendium, meaning.' Worcester's Dict.
'Referring to the debate in the constitutional convention on the section,--as is proper for the sake of interpretation,--it appears that before the motion was put to adopt it, a member arose and stated, 'Before that motion is put, I would like to ask the chairman of the committee, if the substance of the proposed law means that the law itself, in substance, shall be published, or that the purpose of the proposed law be published. Would it not be better to strike out 'the substance,' and insert 'the purpose"?
'The chairman replied: 'The committee did not desire that the community should be misled as to the purpose of the law, and sometimes the caption of the law is very misleading, and it was to obviate advantage being taken of the public in the matter, that it was written as it is.' The section was then adopted. Official Report, 41st day. From this it would seem, that it was intended that the essential or material part, the essence, the meaning or an abstract or compendium of the law, was to be given, and not its mere purpose or subject.
'The title of a bill may give notice of its substance, but most often it does not. The title may be very general, and when the subject is expressed in general terms, everything that is referable and cognate to the subject expressed, may be included in the bill, without offense to that provision which requires that every law shall contain but one subject which shall be clearly expressed in the title. The subject, therefore, may be expressed in the title of a bill, but the substance is not required there to appear. In other words, there is a wide difference in legislative language, in the meaning of the words, substance and subject, when applied to a bill. In Falconer v. Robinson, 46 Ala. (340) 347, the distinction between the two words was well pointed out by Peck, C.J., in respect to the title of an act to authorize the governor to fill vacancies in certain county offices, when he said, (140 Ala. at 501, 502, 503, 37 So.2d at 323.)
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