State Docks Commission v. State ex rel. Jones

• Decision Date: 29 September 1933
• Docket Number: 1 Div. 795.
• Citation: 150 So. 537,227 Ala. 521
• Parties: STATE DOCKS COMMISSION et al. v. STATE ex rel. JONES.
• Court: Alabama Supreme Court

150 So. 537

227 Ala. 521

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

1 Div. 795.

Supreme Court of Alabama

September 29, 1933

Rehearing Denied Nov. 10, 1933.

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

Petition of the State of Alabama, on the relation of P. L. Jones, for mandamus to the State Docks Commission, the individual members composing the same, and J. H. Bruce, as Secretary and Treasurer of the State Docks Commission. From a judgment granting the writ, respondents appeal.

Reversed and remanded.

JOHNSTON Special Judge, dissenting in part.

Thos E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst Atty. Gen., for appellants.

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

PER CURIAM.

Appellee Jones, petitioner in the court below, had a contract with the State Docks Commission on and prior to September 1, 1932, for employment as superintendent of the docks at Mobile, which are the property of the state, at an agreed salary of $324 per month, and for several months prior to May 1st had been paid his agreed compensation at that rate regularly on the 15th and last days of each month.

He remained, in such employment during the months of May, June and July, 1933, and all respondents to the petition in the court below admitted that he during that time faithfully performed the services required of him by his contract of employment.

It was further admitted that the State Docks Commission and its secretary and treasurer had on hand and available sufficient funds not otherwise appropriated to have fully paid him his full salary of $324 for each of said months of May, June, and July, 1933. It was further admitted that he made proper demand for the full payment of his monthly stipend at said rate of $324 per month and, on being paid less, made due protest. The State Docks Commission ordered the secretary and treasurer, Bruce, to pay Jones the full amount of his salary at the rate of $324 monthly, but the secretary and treasurer, having full control of the funds, refused to pay him at said rate, but did pay him at a rate of 70 per cent. of the salary that had been paid him for the month of September, 1932. The refusal of Bruce, the secretary and treasurer, to pay more was based on section 6 of an act of the Legislature of Alabama, approved April 14, 1933. Gen. Acts 1933 (Ex. Sess.) pp. 124, 130.

Jones, being without other remedy, resorted to a mandamus proceeding in the circuit court of Mobile county to compel the additional payment, and it is conceded that mandamus is his proper remedy, if any he has. In his petition Jones attacks the validity of the act approved April 14, 1933, on the following grounds: (1) The act is unconstitutional, null and void; (2) if valid, it is without application to the petitioner or his employment; (3) if valid and applicable, then section 6 of the act has no application to the petitioner or his employment, but in that case his salary would be fixed by section 1 of the act at $300 per month. The prayer of the petition is that a writ be issued commanding the respondents to pay petitioner the balance of his salary as claimed by him, or, if he be mistaken in the amount claimed, such sum as may be found to be due to him.

Bruce, one of the respondents in the court below, demurred to the petition on the following grounds:

1. Said petition shows on its face that the petitioner is not entitled to the amount of money which it is sought to have this respondent pay to him.

2. Said petition shows on its face that the order of the State Docks Commission requiring this respondent to pay to the petitioner the amount of money sought to have paid him by this respondent has been superseded by the act of the Legislature approved April 14, 1933.

3. For that said petition shows on its face that the said the State Docks Commission was without authority to require this respondent to pay to the petitioner the amount of money sought by him to be paid by this respondent.

4. For that said petition shows on its face that under the act of the Legislature of April 14, 1933, the petitioner was entitled on May 15, 1933, to have this respondent pay to him only the sum of $113.40, and not the sum of $162.

5. For that the averment of said petition that the act of the Legislature of Alabama approved April 14, 1933, is unconstitutional and void, is the conclusion of the pleader.

6. For that this court knows that the act of the Legislature of April 14, 1933, referred to in said petition, is constitutional, valid, and enforceable, and operates to reduce the salary of the petitioner as therein provided.

The court below overruled the demurrer, whereupon all the respondents answered admitting as true all the facts alleged in the petition. The court below then made and entered an order granting the peremptory writ as prayed for, the alternative writ having been waived, and adjudged that petitioner Jones was entitled to the full amount claimed by him as compensation for his services for the months of May, June, and July, 1933, at the rate of $324 per month. The appeal is taken by J. H. Bruce, as secretary and treasurer of the State Docks Commission, and the other respondents, the State Docks Commission and its individual members, join in the appeal.

Appellants assign as error (1) the overruling of the demurrers to the petition, and (2) the grant of relief.

The validity of the whole act was vigorously assailed in the oral argument before this court and is likewise assailed in several briefs filed as being violative of the various provisions of section 45 of the Constitution; (1) That the act contains more than one subject; (2) that the subject is not clearly expressed in the title; (3) that the act, or at least some of the provisions thereof, notably section 6, revised, amended, extended, or confirmed provisions of existing law or laws without reciting and publishing same at length. The validity of the act is also challenged as violative of section 61 of the Constitution, in that Senate Bill 183 was so altered or amended on its passage through either the Senate or the House of Representatives "as to change its original purpose." It is further strenuously insisted that section 6 of the act is especially repugnant to many, if not all, of the provisions of sections 45 and 61 of the Constitution and that its presence in the act invalidates the whole act. It is also insisted that should other parts of the act be valid, the invalidity of section 6 forbids its operation upon appellee Jones' salary or compensation. It is also insisted that the last clause in section 1 of the act, prescribing that the salaries of all employees of the State Docks Commission, other than the general manager, should not exceed $3,600 per annum, which provision originated in an amendment offered by Mr. Swift in the House of Representatives, was not legally adopted in the House, in violation of section 64 of the Constitution, which provides that: "No amendment to bills shall be adopted except by a majority of the house wherein the same is offered, nor unless the amendment with the names of those voting for and against the same shall be entered at length on the journal of the house in which the same is adopted."

Appellee also contends that said Swift Amendment, which originated in the House of Representatives, was not properly concurred in by the Senate, in violation of said section 64 prescribing that: "No amendment to bills by one house shall be concurred in by the other, unless a vote be taken by yeas and nays, and the names of the members voting for and against the same be recorded at length on the journal."

Lastly, counsel for appellee Jones and other distinguished attorneys, amici curiæ, contend that contracts of employment such as that made by Jones with the State Docks Commission are protected from abrogation by both the state Constitution and section 10 of article 1 of the Constitution of the United States, prescribing that "No state shall * * * pass any * * * law impairing the obligation of contracts." Counsel for appellee invoke the doctrine that the journals of the House and Senate are conclusively presumed to be correct, and this court takes judicial notice of their contents. State ex rel. Crenshaw v. Joseph, 175 Ala. 579, 57 So. 942, Ann. Cas. 1914D, 248.

The condition of the record and the elaborate arguments here presented make it incumbent on us as an appellate court to consider and pass upon every specific and applicable constitutional question presented here by argument or brief, provided the court is so advised in the premises as to be relieved of the burden of its making a search of the journals to ascertain the true status. This latter duty "rests upon the complaining party, and not upon the court." Fitzpatrick v. State, 169 Ala. 1, 53 So. 1021, 1023; State ex rel. Crumpton v. Montgomery, Excise Commissioners, 177 Ala. 212, 220, 221, 59 So. 294; State ex rel. Knox v. Dillard, 196 Ala. 548, 72 So. 56. Counsel here have complied with the foregoing rule, and if it is found by us that there be any discrepancy between the published act and the House and Senate Journals, such journals are referred to as conclusive proof of the form and terms of the act as passed. Mayor & Aldermen of City of West End v. Simmons, 165 Ala. 359, 51 So. 638.

The question is also raised in the court below and in this court that the act does not apply and cannot constitutionally apply to appellee Jones' salary due to the provisions of section 93 of the Constitution as amended (Amendment 12), known as the Mobile Seaport Amendment.

The title of the original bill reads as follows: "A bill to be entitled an act to fix the salaries of certain officers and employees of the State or any...