State Docks Commission v. State ex rel. Cummings

• Decision Date: 15 June 1933
• Docket Number: 1 Div. 781.
• Citation: 227 Ala. 414,150 So. 345
• Parties: STATE DOCKS COMMISSION et al. v. STATE ex rel. CUMMINGS.
• Court: Alabama Supreme Court

150 So. 345

227 Ala. 414

STATE DOCKS COMMISSION et al. v. STATE ex rel. CUMMINGS.

1 Div. 781.

Supreme Court of Alabama

June 15, 1933

Rehearing Denied Nov. 2, 1933.

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Petition of the State of Alabama, on the relation of J. L. Cummings for mandamus to the State Docks Commission and others. From a judgment for petitioner, respondents appeal.

Judgment reversed; petition dismissed.

Thos E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty Gen., for appellants.

Stevens McCorvey, McLeod, Goode & Turner, of Mobile, for appellee.

THOMAS Justice.

The overruling of demurrers to the petition for writ of mandamus issued and directed to the individuals composing the State Docks Commission and to the State Docks Commission, and the entering of judgment for petitioner, are assigned as error.

The State Docks Commission is the governing agency of the state of Alabama provided for by section 93, as amended, of the Constitution of the State of Alabama of 1901 (Amendment 12), engaged in the work of internal improvement or promoting, developing, constructing, maintaining, and operating the state's only harbor and seaport at Mobile, and charged with and exercising the management and control as said agency of such work or improvement, said the State Docks Commission having been created under and by virtue of an act of the Legislature of Alabama approved September 18, 1923, embodied as sections 2526 to 2565, inclusive, of the Code of Alabama of 1923, and being continued under and by virtue of an act of the Legislature approved January 17th, 1927, embodied in pages 1 to 14, both inclusive, of the General Acts of Alabama of 1927. Acts 1923, p. 330 et seq.; Acts 1927, p. 1; Downing v. State, 214 Ala. 199, 107 So. 80.

The petitioner avers his employment by that commission, the accrual of his salary, the existence of sufficient funds therefor, available as operating expenses on May 15, 1933, the failure to pay, though there was the order to pay, assigning as a reason for such declination by the secretary and treasurer: "The act of the Legislature of Alabama approved April 14th, 1933, entitled, 'An Act to fix, limit or regulate the salaries and compensation of certain officers and employees of the State or any department thereof; to provide how the same shall be payable; and to provide for the repeal of all laws or parts of laws in conflict with the provisions of this Act; and to provide when the provisions of this act shall become effective,' operated as a reduction of your petitioner's monthly salary to 70 per cent. of the salary which your petitioner earned for the month of September, 1932, which applied to your petitioner's case would amount to $226.80 for the whole month of May, 1933, payable only at the end of said month, and nothing was payable sooner; and that because of said act they could and would not pay your petitioner the said sum of $162 which they admitted was due under your petitioner's contract of employment with said the State Docks Commission, and which said the State Docks Commission had ordered them to pay to your petitioner on said 15th day of May, 1933."

The questions recur: Is the salary of such an official, as petitioner, subject to the terms of the Act of April 14, 1933? Is he a public officer or a mere employee unaffected by the Act? 46 C.J. p. 922. The State Docks Commission not being subject to suit, mandamus is the proper remedy when a right exists. State Docks Commission v. Barnes, 225 Ala. 403, 143 So. 581; State Docks Commission v. Sossaman (Ala. Sup.) 149 So. 923.

It is established that the Constitution is the supreme law, and is a limitation upon the power of the Legislature, binding on the several departments of state government, and the people themselves, whose ordinance it is "or charter of its sanction," subject only to the restraints resulting from the Constitution of the United States [ State ex rel. Meyer v. Greene, Judge of Probate, etc., 154 Ala. 249, 254, 46 So. 268; Johnson v. Craft, 205 Ala. 386, 393, 87 So. 375]; that a constitutional prohibition may be expressed, or it may result from necessary implication. "Constitutions usually deal with larger topics and are couched in broader phrase than legislative acts; hence their just interpretation is not always reached by the application of similar methods. * * * 'A Constitution is not to receive a technical construction, like a common-law instrument, or statute.' Dorman v. State, 34 Ala. 216, 235." Realty Investment Co. v. City of Mobile, 181 Ala. 184, 187, 61 So. 248, 249.

A constitutional provision, as far as possible, should be construed as a whole and in the light of entire instrument and to harmonize with other provisions, that every expression in such a solemn pronouncement of the people is given the important meaning that was intended in such context and such part thereof. 12 C.J. pp. 707, 708; State ex rel. City of Tuscaloosa v. Court of County Com'rs of Tuscaloosa County, 173 Ala. 724, 54 So. 763; Board of Revenue of Jefferson County v. State ex rel. City of Birmingham, 172 Ala. 138, 54 So. 757; Board of Revenue of Jefferson County v. City of Birmingham, 205 Ala. 338, 88 So. 16.

Where the intention of a constitutional provision is clearly expressed by its terms or by necessary implications therefrom, no resort to secondary rules is necessary to obtain its meaning and intention. Johnson v. Craft, supra. It is only where doubt remains that such resort is had, and contemporaneous constructions long continued have been looked to as an aid in determining the intent and public policy so expressed. Ex parte Allgood, State Auditor, 213 Ala. 426, 104 So. 851.

It is further declared that where a power is expressly given by the Constitution, and the means by which, or the manner in which it is to be exercised is prescribed and mandatory, such means or manner is exclusive of and prohibits others. Coleman v. Town of Eutaw, 157 Ala. 327, 47 So. 703; Ex parte State of Alabama, 52 Ala. 231, 23 Am. Rep. 567; Perry County v. Selma, Marion & Memphis Railroad Co., 58 Ala. 546, 556; Salter v. City of Anniston, 220 Ala. 199, 124 So. 663; Johnson v. Craft, 205 Ala. 386, 87 So. 375.

The Act of April 14, 1933 [No. 138-S. 183-Lapsley, Lusk, Ex. Sess., p. 124] is entitled: "An Act to fix, limit or regulate the salaries and compensation of certain officers and employees of the State or any department thereof; to provide how the same shall be payable; and to provide for the repeal of all laws or parts of laws in conflict with the provisions of this Act; and to provide when the provisions of this Act shall become effective."

Among other things, the act provides as follows:

"Section 1. That the annual salaries of the officers and employees of the State of Alabama hereinafter named shall be the amounts hereinafter set opposite the respective officers, positions and employments, and be payable in equal monthly installments, viz:" (Here follows a long list of officers and employees of the various State Departments and annual salaries fixed.)

"The salaries of the officers and employees of the State Docks Commission shall be as follows: General Manager $6,000.00. The salary of no other employee shall exceed $3,600.00."

"Section 5. As to all salaries herein provided for officers or employees not elected or appointed for any term of office and which salaries are subject to reduction now this Act shall become effective on and after the first day of the month succeeding the approval of this Act; and as to all other salaries herein, this Act shall take effect on the first day of the month next succeeding the ratification of any Constitutional Amendment removing or suspending Constitutional restriction or limitations upon decreasing or diminishing the salary, fees or compensation of any officer, officers or employees during the term for which they shall have been elected or appointed.

"Section 6. The maximum annual salary or compensation which may be paid to any officer or employee of any department, board, or commission of the State, whose salary or compensation is not hereinabove fixed, shall not exceed, seventy per cent of twelve times the salary paid such officer or employee for the month of September, 1932. Provided however, that nothing in this act shall authorize the reduction of any compensation or salary below twelve hundred dollars per annum. Provided, further that this Act shall not operate to increase the present salary of any officer or employee."

The Mobile Port Amendment to section 93 of the Constitution of the State of Alabama of 1901 (Amendment 12) provides "The State shall not engage in works of internal improvement, nor lend money or its credit in aid of such, except as may be authorized by the Constitution of Alabama or amendments thereto; nor shall the state be interested in any private or corporate enterprise, or lend money or its credit to any individual, association, or corporation, except as may be expressly authorized by the Constitution of Alabama, or amendments thereto; but when authorized by laws passed by the Legislature the state may appropriate funds to be applied to the construction, repair, and maintenance of public roads, highways and bridges in the state; and when authorized by appropriate laws passed by the Legislature the state may at a cost of not exceeding ten million dollars engage in the work of internal improvement, or promoting, developing, constructing, maintaining, and operating all harbors and seaports within the state or its jurisdiction, provided, that such work or improvement shall always be and remain under the management and control of the state, through its State Harbor Commission, or other governing agency. The adoption of ...