State ex rel. Conrad v. Board of Revenue and Road Com'rs

• Decision Date: 20 June 1935
• Docket Number: 1 Div. 879
• Citation: 163 So. 345,231 Ala. 18
• Court: Alabama Supreme Court
• Parties: STATE ex rel. CONRAD v. BOARD OF REVENUE AND ROAD COM'RS et al.

163 So. 345

231 Ala. 18

STATE ex rel. CONRAD v. BOARD OF REVENUE AND ROAD COM'RS et al.

1 Div. 879

Supreme Court of Alabama

June 20, 1935

Rehearing Denied Oct. 10, 1935

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

Petition of the State of Alabama, on the relation of William A Conrad, for mandamus to the Board of Revenue and Road Commissioners of Mobile County and others. From a judgment for respondents, relator appeals. Transferred from Court of Appeals.

Affirmed.

Harry T. Smith & Caffey, of Mobile, for appellant.

George A. Sossaman and Smith & Johnston, all of Mobile, for appellees.

KNIGHT Justice.

Appellant filed his petition for mandamus in the circuit court of Mobile county against the Board of Revenue and Road Commissioners of said county, and the individual members of said board, seeking to require them to issue to petitioner a warrant on the treasurer of Mobile county for the payment to petitioner of the sum of $300 as his compensation for services as deputy clerk of the circuit court for the month of January, 1935.

In his petition, petitioner, the appellant here, averred that he was duly appointed deputy clerk of the circuit court of Mobile county by Hon. Sextus H. Smith, the clerk of said court, for his term of office ending January 14, 1935, and for the new term of the said clerk, beginning January 15, 1935; that petitioner had served as such deputy clerk for the entire month of January, 1935, under his said appointment; and that petitioner for such services was "entitled to be paid under the terms of an Act of the Legislature of Alabama approved March 2, 1931." A copy of the act was incorporated in the petition.

That during the month of January, 1935, and throughout the term of the clerk appointing petitioner, Mobile county composed a judicial circuit having more than two and less than five circuit judges.

That the Board of Revenue and Road Commissioners had refused to issue him a warrant for $300, as specified in the act set out in the petition, but had undertaken to issue him a warrant for the sum of $101.61, as compensation for the first fourteen days in January, and had failed to issue him any warrant for the remainder of said month.

The respondent duly appeared, and filed a number of grounds of demurrer to the petition, and the court sustained their demurrer, and petitioner declining to plead further, the petition was dismissed, and petitioner taxed with the cost. From the judgment sustaining the demurrer and dismissing the petition, the present appeal is prosecuted.

By an act of the Legislature of Alabama, approved February 12, 1927 (Gen.Acts 1927, p. 33), it is provided: "That in all judicial circuits in this State having more than two and less than five circuit judges, the register shall, subject to removal at his will, appoint a deputy register for said court and the clerk shall, subject to removal at his will, appoint two deputy clerks for said court in lieu of a deputy clerk and additional deputy clerk as now provided by law; the deputy register and deputy clerk shall each be paid a salary of three hundred dollars per month, payable monthly ***"

On March 2, 1931, the above referred to act was amended to read: "That in all Judicial Circuits in this State having more than two and less than five Circuit Judges, the register shall, subject to removal at his will, appoint a deputy register for said Court, and the Clerk shall, subject to removal at his will, appoint three deputy clerks for said Court; the deputy register and deputy clerks shall each be paid a Salary of Three Hundred Dollars per month payable monthly, out of the treasury of the County composing such Circuit. ***" Gen.Acts 1931, p. 131.

At the Extra Session of the Legislature 1932, a constitutional amendment was submitted to the people, and duly adopted, which is in words as follows: "The Legislature of Alabama may hereafter from time to time by general or local laws, but subject to the provisions of Section 281 of the Constitution of Alabama, fix, regulate and alter the costs, charges of court, fees, commissions, allowances or salaries to be charged or received by the following County officers of Mobile County, Alabama, being, the Judge of Probate, Tax Assessor, the Tax Collector, the Clerk of the Circuit Court, and the Register of the Circuit Court, including the method and basis of the compensation." General Acts, 1932, Extra Session, p. 83.

From the foregoing, it will be noted that the amendment does not in terms include deputies either of the clerk of the circuit court, or of the register of said court.

In anticipation of the adoption of the constitutional amendment above set out, an enabling act was passed and approved November 8, 1932 (Local Acts of Alabama, 1932, Extra Session, p. 108, known as the Granade Bill), dealing with the entire subject of the proposed constitutional amendment, and also making provision for the employment by the clerk of the circuit court of assistants. This act, by its terms, was to become effective when, and only if, the proposed constitutional amendment should be adopted. The amendment was adopted at the general election held in November, 1932.

Section 6 of the enabling act, among other things, provided: "The Clerk of the Circuit Court shall receive a salary of Forty-eight Hundred Dollars per annum and may employ as assistants: one clerk to serve as clerk of the Criminal Division of the Circuit Court at an annual salary of Thirty-six Hundred Dollars; one clerk to serve on the Civil Division of the Circuit Court at an annual salary of Twenty-four Hundred Dollars, and the Clerk of the Circuit Court shall be entitled to an allowance of Thirty-six Hundred Dollars per year to be used by the said Clerk in employing such other assistants as he deems necessary."

The petitioner does not disclose in his petition whether he was employed as a clerk in the criminal or civil division of the circuit court.

Thereafter a local act, advertised and passed as such was adopted by the Legislature, and duly approved by the Governor, reducing the salaries of "The three Deputy Clerks of the Circuit Court" to $2,700 each. This act was approved March 23, 1933, and is known as the Sossaman Act. Local Acts 1933, Extra Sess. p. 28.

Learned counsel for appellant is of the opinion that the demurrer raises three constitutional questions:

(1) Whether the Act of March 2, 1931, providing three deputy clerks for all circuits having not less than two or more than five judges, and providing that they shall be paid $300 per month for their services, is a local act passed in violation of section 106 of the Constitution.

(2) Whether petitioner, as deputy clerk of Mobile county, was entitled to compensation for his services up to and including January 14, 1935, upon the basis specified in the Sossaman Bill (Loc.Acts 1933, Ex.Sess., p. 28), or upon the basis specified in the General Act of March 2, 1931.

That a decision of this question necessarily involves a decision as to whether (a) the Act of March 2, 1931, is violative of section 106 of the Constitution on the ground that it really constitutes a local law in the guise of a general law and was passed in violation of section 106 of the Constitution; and (b) if it is a general, rather than a local, law, then whether the Sossaman Act, which is a local law, is violative of section 105 of the Constitution.

(3) Whether the Granade Act (Loc.Acts 1932, Ex.Sess., p. 108) which is also a local act, is unconstitutional as violative of section 105 of the Constitution, in so far as it purports to change the salaries of the three deputy...