State ex rel. Bozeman v. Hester, 8 Div. 755

• Decision Date: 15 April 1954
• Docket Number: 8 Div. 755
• Parties: STATE ex rel. BOZEMAN et al. v. HESTER.
• Court: Alabama Supreme Court

Page 61

72 So.2d 61

260 Ala. 566

STATE ex rel. BOZEMAN et al. v. HESTER.

8 Div. 755.

Supreme Court of Alabama.

April 15, 1954.

W. F. McDonnell and Clopper Almon, Sheffield, for appellants.

Leo Berryman, Jr., Tuscumbia, and Ernest B. Fite and Rankin Fite, Hamilton, for appellee.

The Act referred to in the opinion is as follows:

'Act No. 227 S. 22-Todd

'An Act

'Relating to Colbert County; abolishing the office of County Superintendent of Education, and creating the office of County Commissioner of Public Schools in lieu thereof; providing for the election, term of office, duties and powers, and compensation of the County Commissioner of Public Schools, and conferring upon the Commissioner the powers, duties, and functions of the County School Building Commission.

'Be It Enacted by the Legislature of Alabama:

'Section 1. The office of County Superintendent of Education in Colbert County is hereby abolished; and there is hereby created in lieu thereof the office of County Commissioner of Public Schools.

'Section 2. Immediately upon the effective date of this Act, the Governor shall appoint a Commissioner of Public Schools, who shall hold office until July 1, 1957. A Commissioner of Public Schools for Colbert County shall be elected by the qualified electorate of Colbert County at the general election to be held in November, 1956, and every four years thereafter. He shall take office on the first day of July next succeeding the election.

'Section 3. The Commissioner of Public Schools shall have the same power and authority, and shall perform the same duties and functions now required by law to be performed by the Superintendent of Education and the County School Building Commission of Colbert County created by Act No. 702, approved September 5, 1951 (General Acts of Alabama, 1951 [p. 1210]).

'Section 4. The Commissioner of Public Schools shall receive the same salary and compensation now provided by law for the County Superintendent of Education of Colbert County.

'Section 5. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.'

MERRILL, Justice.

This is an appeal from a final judgment of the Circuit Court of Colbert County in an action in the nature of a quo warranto. Mr. James T. Bozeman, the relator, charged in his complaint that there was no valid law authorizing the office of County Commissioner of Public Schools and in the alternative that if said office legally exists, the appellee unlawfully intruded into and holds the same.

Mr. Bozeman was elected and qualified as Superintendent of Education for Colbert County for a term of office beginning on July 1, 1951, and ending on June 30, 1955. At its Regular 1953 Session the Legislature of Alabama passed and adopted and on the 24th day of July, 1953, the Governor of Alabama approved Act No. 227, Acts of Alabama 1953, p. 293, which will be set out by the Reporter.

This Act was advertized and passed as a local act relating only to Colbert County. Pursuant to its provisions, the Governor of Alabama appointed the appellee, Mr. Wade Hester, as Commissioner of Public Schools of Colbert County, Alabama, and issued to him a commission. The purpose of this proceeding is to test Mr. Hester's right to hold the office to which he was appointed.

Appellee demurred to the complaint and the demurrer having been overruled, he filed an answer, alleging that he holds the office of Commissioner of Public Schools for Colbert County by appointment of the Governor under said Act No. 227. The appellant demurred to this answer and his demurrer having been overruled, the cause was submitted on a stipulation of facts, the last two sections of which are as follows:

'7. If the said Act No. 227 is a valid and constitutional act, defendant, Wade Hester, is qualified to hold the said office of Commissioner of Public Schools for Colbert County, Alabama.

'8. No point is made as to the regularity of the procedure in this case and the only question between the parties is as to the validity and constitutionality of the said Act No. 227.'

Judge Hughston wrote an excellent and comprehensive opinion upholding the constitutionality of the Act in question and the judgment of the court was in favor of the defendant. The appeal is from that judgment.

Appellant argues that Act No. 227 is unconstitutional because it violates §§ 105, 175 and 45 of the constitution and that the act to which it refers, Act No. 702, Acts of Alabama of 1951, Code 1940, Tit. 62, § 3(1), is unconstitutional and, therefore, Act No. 227 is unconstitutional.

In an advisory opinion requested by the House of Representatives, we said the proposed Act did not violate § 105 of the Constitution; that it did not violate subsections (9), (24) or (29) of § 104 of the Constitution, and that it did not violate § 175 of the Constitution, in that the term of the incumbent County Superintendent of Education of Colbert County was abridged. Opinion of the Justices, 259 Ala. 329, 66 So.2d 779. That opinion, however, was not the opinion of the Supreme Court and binds neither the justices nor the department or officer requesting the opinion. It was merely advisory--consultative only. In re Opinion of the Justices, 254 Ala. 177, 47 So.2d 655.

In Morgan County v. Edmonson, 238 Ala. 522, 192 So. 274, 276, we said:

'It is of course a well settled rule that in determining the validity of an enactment, the judiciary will not inquire into the motives or reasons of the legislature or the members thereof. 16 C.J.S., Constitutional Law, § 154, p. 487. 'The judicial department cannot control legislative discretion, nor inquire into the motives of legislators.' City of Birmingham v. Henry, 224 Ala. 239, 139 So. 283. See, also, State ex rel. Russum v. Jefferson County Commission, 224 Ala. 229, 139 So. 243; * * *.'

It is our solemn duty to uphold a law which has received the sanction of the Legislature, unless we are convinced beyond a reasonable doubt of its unconstitutionality. Yeilding v. State ex rel. Wilkinson, 232 Ala. 292, 167 So. 580.

We shall first consider the contention in reference to Act No. 702, General Acts 1951, p. 1210. The title is as follows:

'An Act Relating to counties having a population of not less than thirty-eight thousand eight hundred nor more than thirty-nine thousand five hundred inhabitants; creating a School Building Commission in any such county, prescribing its powers, duties, and authority, and providing that such Commission shall have exclusive power to expend funds accruing to the County Board of Education or any other county agency for the construction, equipment, and maintenance of public school buildings.'

Act No. 702 contains one sentence which might merit our notice as showing its purpose: 'The Commission shall exist only for four years after the passage of this bill the period of time necessary to perform the duties imposed upon it by this Act, as follows: to locate, plan, construct, equip, and maintain public school buildings in the county.' Section 3 of Act No. 227 conferred upon the Commissioner of Public Schools the same duties which Act No. 702 had conferred upon the County School Building Commission of Colbert County (the members of the County Board of Education).

We do not feel that we are called upon, or that it is necessary, to decide the constitutionality of Act 702, passed as a general bill with local application. For purposes of deciding the question before us, the constitutionality vel non of Act No. 227, we shall assume, without conceding, as we did when we rendered our advisory opinion, that Act No. 702 is to be considered as unconstitutional or mere surplusage. If unconstitutional, which we do not decide, reference to it in Act 227 would not render the latter unconstitutional. In Harris v. State ex rel. Williams, 228 Ala. 100, 151 So. 858, 862, where the Act of 1931 referred to the Act of 1923, which it was contended was unconstitutional, we said:

'* * * If such latter act is complete in itself as fully evidencing the whole of the legislation there intended to be covered, with a title which indicates its subject, it is a valid enactment for its own purpose, though in order to make its subject-matter clear it may refer to an act which has been repealed or is unconstitutional in whole or in part. It does not purport to revive a dead act, but creates a new one, complete and definite, in full compliance with the requirements of the Constitution.'

See Springer v. State ex rel. Williams, 229 Ala. 339, 157 So. 219, where the court held that the fact that the legislature was prohibited by § 175 of the Constitution from abridging the term of Superintendent of Education Springer, did not render the entire act unconstitutional. We, therefore, proceed to consider Act No. 227 without any further mention of or attention to Act No. 702. Compare Tayloe v. Davis, 212 Ala. 282, 102 So. 433, 40 A.L.R. 1052.

As to the contention that Act No. 227 violates § 105 of the Constitution, we refer to the case of Walker County v. Barnett, 247 Ala. 418, 24 So.2d 665, 668, where the term of the tax collector of Walker County was reduced from six years under the general law to four years by a local law, H.B. 624. After discussing and citing many cases this court said, 'House Bill 624 is not offensive to section 105 of the Constitution of 1901.' See Hall v. Underwood, 258 Ala. 392, 63 So.2d 683.

In Steadman v. Kelly, 250 Ala. 246, 34 So.2d 152, 156, we quoted from Talley v. Webster, 225 Ala. 384, 143 So. 555, saying: 'We need not review the numerous cases construing this section . Suffice it to say it does not inhibit the passage of local laws on subjects, not prohibited by Section 104, merely because such local law is different, and works a partial repeal of the general laws of the State in the territory affected.' See also State ex rel. Austin v. Black, 224 Ala. 200, 139 So. 431, where a local act changing the method of electing the ...