Peddycoart v. City of Birmingham

• Decision Date: 13 January 1978
• Parties: Floyd PEDDYCOART et al., Mrs. Peggy J. Salamone, etc., Robert Lee McKinnon, Sr., etc., Roger Dale Crocker and Richard Lambert et al. v. CITY OF BIRMINGHAM. S.C. 2552, S.C. 2662, S.C. 2731, S.C. 2356 and S.C. 2729.
• Court: Alabama Supreme Court

Page 808

354 So.2d 808

Floyd PEDDYCOART et al., Mrs. Peggy J. Salamone, etc., Robert Lee McKinnon, Sr., etc., Roger Dale Crocker and Richard Lambert et al. v. CITY OF BIRMINGHAM.

S.C. 2552, S.C. 2662, S.C. 2731, S.C. 2356 and S.C. 2729.

Supreme Court of Alabama.

Jan. 13, 1978.

Rehearing Denied Feb. 10, 1978.

Mike W. McCormick, Birmingham, for appellant Roger Dale Crocker.

Roger M. Monroe of Jones & Monroe, Birmingham, for appellants Richard Lambert et al., and Floyd Peddycoart et al.

Milford G. Bass, Jr., Birmingham, for City of Birmingham, appellee.

BEATTY, Justice.

This is a consolidated appeal by five plaintiffs who filed tort actions against the City of Birmingham. In each case the trial court granted a motion to dismiss based upon a plea of governmental immunity under Tit. 62, § 660, Alabama Code (Recomp. 1958):

The city shall not be liable in damages for personal injuries or damage to personal property by reason of any act or omission done or omitted in the exercise of its governmental functions or failure to exercise such functions; provided, however, that this provision shall not be construed to prohibit or limit the recovery of damages for personal injuries arising out of defects in highways as now provided or allowed by law.

The plaintiffs have placed in issue the constitutionality of that statute under both the state and federal Constitutions. It is contended that § 660 is a local Act notwithstanding the fact that in its original form, Act 257, § 13, Acts of Alabama, Regular Session 1915, it bore a minimum population classification of 100,000. The plaintiffs argue that this section is constitutionally offensive under § 106 of the Alabama Constitution of 1901 because the population classification is not reasonably related to the purpose of the section, and because it permits an unequal application of the law.

Our cases have held that such a relationship must exist between the statute's purpose and the population classification established, otherwise the classification will be deemed arbitrary, e. g., Dearborn v. Johnson, 234 Ala. 84, 173 So. 864 (1937). The case of Couch v. Rodgers, 253 Ala. 533, 45 So.2d 699 (1950) reviews many of our decisions on this point, in some of which we reasoned that the circumstance of size did bear a reasonable relationship to the purpose of the legislation. But we are unable to ascertain in this case such a relation. The purpose of § 660 is to provide governmental immunity, but that immunity is to be granted only to the largest city in the largest county in the state. If there is any reasonable relationship between the grant of immunity and the size of its population as denoted by its corporate boundaries, we are unable to perceive it. "Judicial ingenuity would exhaust itself in an effort to find any rational basis for the classification it presents." City of Birmingham v. Moore, 248 Ala. 422, 425, 27 So.2d 869, 872 (1946). Such a classification, moreover, arbitrarily denies to citizens the right to pursue against that city remedies for injuries to person and property resulting from the exercise of its governmental functions, while they are free to pursue those same remedies against all others, as we shall show later. This results in a denial of equal protection of the laws, United States Constitution, Article Fourteen, because it constitutes an irrational difference in the treatment of our citizens, McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); accord, Comer v. City of Mobile, 337 So.2d 742 (Ala., 1976).

We hold, therefore, that § 660 is unconstitutional under both the federal and state constitutions. It violates the equal protection principle and, because of its unreasonable population classification, it cannot qualify as a general law of local application.

It is also maintained that § 660 violates the provisions of Article 4, § 105, Alabama Constitution of 1901, in view of the earlier enactment of what is now Tit. 37, §§ 502-504, Alabama Code (now 11-47-190-192, Code of Ala. 1975):

No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless said injury or wrong was done or suffered through the neglect, carelessness, or unskillfulness of some agent, officer or employe(e) of the municipality engaged in work therefor and while acting in the line of his duty, or unless the said injury or wrong was done or suffered through the neglect, carelessness or failure to remedy some defect in the streets, alleys, public ways, or buildings after the same had been called to the attention of the council or other governing body or after the same had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council or other governing body and whenever the city or town shall be made liable to an action for damages by reason of the unauthorized or wrongful acts, or the negligence, carelessness or unskillfulness of any person or corporation, then such person or corporation shall be liable to an action on the same account by the party so injured.

Article 4, § 105, Alabama Constitution of 1901 mandates that:

(N)o . . . local law, . . . shall be enacted in any case which is provided for by a general law, . . . nor shall the legislature indirectly enact any . . . local law by the partial repeal of a general law.

The Alabama Constitution, § 110, defines a general law as one "which applies to the whole state," and a local law as one "which applies to any political subdivision or subdivisions . . . less than the whole; . . ."

If the interpretation of § 105 were being addressed presently for the first time it would be less onerous to give a literal meaning to the language used. We are faced with a more difficult task, however, in view of the numerous instances in the past in which this Court has approved local enactments on subjects already covered by general acts, e. g., Dudley v. Birmingham Ry., Light & Power Co., 139 Ala. 453, 36 So. 700 (1903); Brandon v. Askew, 172 Ala. 160, 54 So. 605, 607 (1911); Board of Revenue v. Kayser, 205 Ala. 289, 88 So. 19 (1921); Mathis v. State, 280 Ala. 16, 189 So.2d 564 (1966); Dunn v. Dean, 196 Ala. 486, 71 So. 709 (1955); State ex rel. Jones v. Steele, 263 Ala. 16, 81 So.2d 542 (1955); Malone v. State, 46 Ala.App. 363, 242 So.2d 409 (1970).

With conscious regard to the doctrine of stare decisis et non quieta movere, nevertheless our duty is to apply the highest law in our state as conscientiously as our abilities allow, even though this application runs counter to reasons which heretofore have been espoused for opposite views. In so doing we perform only our judicial function and do not encroach upon the separation of powers doctrine which makes the legislative branch supreme in legislative matters. Indeed, in performing that duty we only re-assert the axiom of the supremacy of our organic law over all branches of government. State Docks Commission v. State ex rel. Cummings, 227 Ala. 414, 150 So. 345 (1933). If we entertained any doubt upon the meaning of § 105, we would, of course, accord a weighty consideration to the legislative interpretation which has been manifested through the years by the passage of numerous local laws on subjects already affecting those localities through general laws. Jansen v. State ex rel. Downing, 273 Ala. 166, 137 So.2d 47 (1962). But the fact that a class of statutes has been in existence for a long time and considered constitutional does not prevent this Court from declaring them unconstitutional. Sadler v. Langham, 34 Ala. 311 (1859). If a legislative act is repugnant to the Constitution, the courts not only have the power, but it is their duty, when the issue is properly presented, to declare it so. State ex rel. Bassett v. Nelson, 210 Ala. 663, 98 So. 715 (1924); Dyer v. Tuskaloosa Bridge Co., 2 Port. 296, 27 Am.Dec. 655 (1835).

The only phrase in the pertinent portion of § 105 requiring construction is "provided for." "Provided" ordinarily signifies a condition, or a limitation, qualification, or a restraint or exception. Stanley v. Colt, 5 Wall. 119, 72 U.S. 119, 18 L.Ed. 502 (1886), and, in context, it may mean "of the same import." Webster's Third International Dictionary (G. & C. Meriam Co., 1971); Webster's New Collegiate Dictionary (G. & C. Meriam Co., 1973); Abbott, Dictionary of Terms and Phrases (Little, Brown & Co., 1879). When we see the phrase "provided for" preceded by the words "No . . . local law," we are bound to consider the phrase as one of restraint and limitation pertaining to matters of the same import dealt with in the general law. Section 105, then, is an additional constitutional proscription upon the type or kind of legislation which the legislature is allowed to enact, following as it does § 104 which also contains limitations upon the legislative power. Nothing in either section prohibits all local legislation, see §§ 106 and 107, but only that prohibited by §§ 104 and 105.

Notwithstanding the unclouded language expressed in § 105, nevertheless it has prompted a large amount of litigation, beginning as early as 1903 and continuing as late as 1976. Dudley v. Birmingham Ry., Light & Power Co., 139 Ala. 453, 36 So. 700 (1903); Parrish v. Stembridge, 337 So.2d 754 (Ala., 1976). Historically this Court has felt it necessary to construe this language, apparently to assure that the separation of powers doctrine would not be inhibited and that the legislative branch of state government would continue to be supreme in legislative matters. State ex rel. Wilkinson v. Lane, 181 Ala. 646, 62 So. 31 (1913). Thus this Court in an early case held that § 105 was intended:

(T)o prohibit the enactment of special, private, or local laws to meet the purposes of particular cases which may be accomplished by proceedings outside of the Legislature under the provisions of general statutes enacted to meet all cases of that general character. . . . Brandon...