State ex rel. Wilkinson v. Allen

• Decision Date: 13 June 1929
• Docket Number: 6 Div. 405.
• Citation: 219 Ala. 590,123 So. 36
• Parties: STATE EX REL. WILKINSON v. ALLEN, JUDGE.
• Court: Alabama Supreme Court

123 So. 36

219 Ala. 590

STATE EX REL. WILKINSON v. ALLEN, JUDGE.

6 Div. 405.

Supreme Court of Alabama

June 13, 1929

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Quo warranto proceeding by the State of Alabama, on the relation of Horace C. Wilkinson, against Edgar Allen, as Judge of the Birmingham Court of Common Pleas. From a judgment denying relief, petitioner appeals. Reversed and rendered.

Horace C. Wilkinson, of Birmingham, for appellant.

Stokely Scrivner, Dominick & Smith, Mullins & Jenkins, Murphy, Hanna Woodall & Lindbergh, and Thos. J. Judge, all of Birmingham for appellee.

FOSTER J.

In this proceeding the constitutionality of the local act approved September 6, 1927, is attacked. This act creates the Birmingham court of common pleas. Local Acts 1927, p. 346. Its purpose is not to create a court of inferior jurisdiction in lieu of justices of the peace, as authorized by section 168 of the Constitution. Such an inferior court, called the municipal court of Birmingham, was then in existence. The municipal court was originally possessed of three divisions with a judge, clerk, and bailiff for each. The second has been replaced by the Jefferson court of misdemeanors. Local Acts 1919, pp. 134, 135. In an effort to comply with section 106 of the Constitution, the entire proposed act to create the Birmingham court of common pleas was published. The attack made in this case upon said act is that, as passed, it was materially different from the proposed draft thereof as published, in violation of section 106 of the Constitution.

The points of difference are as follows: In the published draft the judge of the Third division of the municipal court was named as the judge of the new court, and his successors were to be elected by the judges of the circuit court (as the judges of the municipal court are selected); he was not required to be learned in the law, nor was an age limit prescribed; and the Third division of the municipal court was to be abolished, and its records transferred to the Second division (which itself had been abolished). Whereas the act as passed provided that the judge and his successors shall be appointed by the Governor; the Third division of the municipal court was left intact, and not abolished; the judge must be learned in the law, and not less than 25 years of age.

In the published draft, the jurisdiction of the court was to embrace all suits at law where the amount involved did not exceed $300; whereas the act as passed conferred jurisdiction of all such suits where the amount exceeds $100 and does not exceed $300.

In the published draft the salary of the clerk was fixed at $2,100 per annum and that of the bailiff at $60 per month; the constables of certain precincts should have authority to execute its process. Whereas in the act as passed the salary of the clerk was fixed at $3,000 per annum, and of the bailiff at $100 per month; the constables were not given power to serve its process, but the sheriff was given such authority.

The question presented, therefore, is whether the substantial features of the published proposed act were materially changed in its passage.

Section 106 of the Constitution has been considered many times by our courts, and four well-defined canons of construction have been firmly settled. They are as follows: "(1) That the 'substance' of the proposed law means, not merely the subject of it, but an intelligible abstract or synopsis of its material and substantial elements ( Wallace v. Board of Revenue, supra [140 Ala. 491, 37 So. 321]; Law v. State, supra [142 Ala. 62, 38 So. 798]); (2) the substance of the act may be sufficiently stated without stating the details which was subsidiary to the stated elements (City of Union-town v. State ex rel. Glass, 145 Ala. 471, 39 So. 814, 8 Ann. Cas. 320; Law v. State, supra; Mayor, etc., of Ensley v. Cohn, supra [149 Ala. 316, 42 So. 827]); and (3) the Legislature is not inhibited from shaping up and working out the details of local legislation by amending bills when presented for consideration and passage." (4) "The substance" of the proposed act, "as advertised cannot *** be materially changed or contradicted." First National Bank v. Smith, 217 Ala. 482, 117 So. 38; State ex rel. Hanna v. Tunstall, 145 Ala. 477, 482, 40 So. 135.

We are concerned here with the third and fourth canons of construction stated above, and their application to the facts of this case. We are confronted with the following questions, therefore: What features of the act constitute its substance within the meaning of section 106, and whether there has been a material change in any portion thereof from the publication.

The "substance" is said to be the essential and material parts and essence of said proposed law, or an abstract or compendium thereof, such as would give the people affected fair information of what the law is. Christian v. State, 171 Ala. 52, 54 So. 1001; Wallace v. Jefferson County Board of Revenue, 140 Ala. 491, 37 So. 321. It is only such departure from the "substance" as published which is material that will nullify the act.

It has been held that when the notice of a proposed act to create an inferior court in lieu of justices of the peace showed that the jurisdiction would be of suits when the amount involved did not exceed $200 (which was in violation of the Constitution), gave no notice of the nature of the act as passed with $100 as the limit of the jurisdiction ( Alford v. Hicks, 142 Ala. 355, 38 So. 752), and in another case when such an act abolished justices of the peace, but the published notice did not so state, the act was nullified (Tillman v. Porter, 142 Ala. 372, 38 So. 647); and in another case when an act fixed the boundaries of the operation of a prohibition law different from that in the published notice, the act was held to violate section 106 of the Constitution (Brame v. State, 148 Ala. 629, 38 So. 1031). The case of City of Ensley v. Cohn, 149 Ala. 316, 42 So. 827, which did not follow the principle of the foregoing authorities, was held to have misapplied the law and it was not followed. First Nat. Bank v. Smith, supra. The opinion in Ex parte Black, 144 Ala. 1, 40 So. 133, merely held that in a notice to create an inferior court reference need not be made expressly to the jurisdiction thereof, nor the election of its officers, for they were essentials of every court and were understood to be embraced in the act.

The cases of Polytinsky v. Johnston, 211 Ala. 99, 99 So. 839; Cadle v. Bland, 213 Ala. 665, 106 So. 170; James v. State, 21 Ala. App. 295, 107 So. 727; McGehee v. State, 199 Ala. 287, 74 So. 374; Christian v. State, 171 Ala. 52, 54 So. 1001; Law v. State, 142 Ala. 62, 38 So. 798, merely relate to the sufficiency of the published notice, as to whether such notice contains a sufficient statement of the substance of the act; and not whether there has been a change from the published notice.

But in the case of First Nat. Bank v. Smith, supra, an important matter considered was whether there was a substantial variance between the act as advertised and the act as passed. The notice stated that the act would appropriate three-fourths of the proceeds of a local tax to a certain purpose, whereas the act as passed appropriated the entire amount of the proceeds to that purpose. The result reached was that this was a material change from the published notice respecting a substantial feature of the act, and that this fact nullified it....