State v. Clements, 3 Div. 915.

CourtSupreme Court of Alabama
Citation126 So. 162,220 Ala. 515
Docket Number3 Div. 915.
Decision Date28 January 1930

126 So. 162

220 Ala. 515


3 Div. 915.

Supreme Court of Alabama

January 28, 1930

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Action of assumpsit by the State against J. F. Clements and another. Judgment of nonsuit, and plaintiff appeals. Affirmed.

See Gen. Acts 1927, p. 638.

See, also, 217 Ala. 685, 117 So. 296.

Thomas and Brown, JJ., dissenting.

Charlie C. McCall, Atty. Gen., and Merwin T. Koonce, Asst. Atty. Gen., for the State.

Arthur B. Chilton and Hill, Hill, Whiting, Thomas & Rives, all of Montgomery, for appellees.


The question we have on this appeal is whether an appropriation by the Legislature from the general treasury of the state, in satisfaction of a moral obligation to a member of the state militia injured in the line of duty, is a special or private law within the meaning of section 106 of the Constitution, which requires publication of notice containing the substance of the proposed law prior to its introduction in the Legislature. Notice of the substance of this proposed act was not published.

Section 110 of the Constitution defines a general law as one "which applies to the whole State." It also provides that "a special or private law within the meaning of this article is one which applies to an individual, association or corporation." It is not necessary therefore for us to go elsewhere, such as to any text-writers or other authorities not controlled by our Constitution, to define those terms as used in it.

When the act in question is analyzed with the foregoing definitions in view, it seems apparent in the first place that it is embraced in the definition of a general law. It certainly applies to the funds of the whole state, and therefore "to the whole State." When funds are appropriated out of the general treasury, every citizen of the state is more or less interested. The tendency is to deplete the treasury which is needed for the general welfare, and whose funds are supplied by the people at large in the state. Neither can it be denied that such an act applies to an individual. It is specially for his benefit.

We find ourselves at the point where there is before us an act which is general because it applies to the whole state on the one hand, and special or private because it applies to an individual on the other. It is therefore both a general and a special or private act. Section 106 of the Constitution does not require the publication of notice of intention to apply for the passage of an act which is general in nature, nor to one which is both general and special or private, but only of one which is special or private or local. We are not concerned with a local act.

It seems apparent that the result is that section 106 should not be construed to apply to an act except one which is merely special or private or local, and not to one which, though of that nature, is also general in some of its aspects. We are here reminded that the Legislature may enact any law in any manner which, either in the manner of its enactment, or in its substance, is not prohibited by the Constitution of the state or nation. It follows that to strike down an act of the Legislature there must be no reasonable doubt but that, either in the manner of its enactment, or in its substance, it violates some clear, precise and particular provision of one or the other of such Constitutions. In this respect, we are also reminded that the provisions of the Constitution are to be strictly construed. This leads us to a consideration of the purpose of section 106. The decisions of this court have uniformly held that its purpose is to give information of its proposed enactment to those who would be affected, so that such of them as may not favor it shall have the opportunity to oppose it. Alford v. Hicks, 142 Ala. 355, 38 So. 752; State v. Allen, 219 Ala. 590, 123 So. 36; Christian v. State, 171 Ala. 52, 54 So. 1001.

Taking such to be its purpose, we inquire who are those affected whose interest or inclination [126 So. 163] may oppose the enactment. Naturally it would be those whose money is appropriated. It cannot be assumed that any one else would be interested in opposing it. The money belongs to all the people of the state, whose representatives are making the appropriation. If such publication is necessary, where would it be published? Section 106 says, "in the county or counties where the matter or thing to be affected may be situated." It is clear that by such provisions of the Constitution did not contemplate that the thing to be affected was money in the general treasury of the state. That may have a technical situs at the seat of government. Bnt the people who would be affected by the law do not largely reside at the seat of government. Then shall it be published in the county where the benefited party resides? We think not, because the people of that county are no more affected by an appropriation than those of any other county.

We have but to examine the acts of the Legislature since the Constitution to find scores of such acts enacted as this one, and apparently the funds so appropriated have been paid. Many of the beneficiaries reside out of the state. The notice should not, of course, be published in the county of their residence. We think we are still further justified in our conclusion by the fact that sections 71 et seq. of the Constitution seem to take care of the general subject of appropriation. This is a different article from that providing for local and special or private laws. Section 71 provides for the general appropriation act, and what it shall and shall not contain. It then provides that "all other appropriations shall be made by separate bills, each embracing but one subject." We think that the sections referred to dealing specifically with this subject should not be held to be controlled by section 106.

Other states seem to entertain the same idea we have expressed as to the nature of an act such as the one we are dealing with.

The following statement of the law is well supported: "An appropriation made in discharge of a moral obligation resting upon the state must be regarded as being for a public purpose, and within the constitutional powers of the Legislature, and the fact that a private person may receive the benefit of such an appropriation does not constitute the act of appropriation a private one." Fairfield v. Huntington, 23 Ariz. 528, 205 P. 814, 817, 22 A. L. R. 1438; Woodall v. Darst, 71 W.Va. 350, 77 S.E. 264, 80 S.E. 367, 44 L. R. A. (N. S.) 83, Ann. Cas. 1914B, 1278; State v. Carter, 30 Wyo. 22, 215 P. 477, 28 A. L. R. 1089; 25 R. C. L. 402.

It is further observed in the case of Fairfield v. Huntington, supra: "And the fact that the law was passed for the benefit of only one individual does not make it special legislation, since it was enacted to satisfy an obligation resting upon all the people who constitute the state. The discharge of such an obligation is merely the performance of a public act, and an appropriation for it is not expending the public funds for a private purpose."

The foregoing authorities also recognize the fact that under the circumstances of this appropriation there was a moral obligation, and that "it would be difficult to enact a law applying to the various situations under which the state's moral obligations might arise." Woodall v. Darst, supra.

We conclude that the act in question is not subject to the constitutional attack which was made upon it in this case.

The judgment of the circuit court conformed to our views, and it is affirmed.


ANDERSON, C.J., and GARDNER and BOULDIN, JJ., concur.

THOMAS and BROWN, JJ., dissent.

SAYRE, J., not sitting.

THOMAS, J. (dissenting).

This is the second appeal (217 Ala. 685, 117 So. 296) touching the same transaction and deals with a public special appropriation that was designated on first appeal as "a special."

The ruling from which the appeal is taken, among other things, recites: "On account of the adverse ruling of the Court heretofore made and entered on the 23d day of February, 1929, sustaining the defendants' demurrers to the complaint, the plaintiff takes a nonsuit with leave to review said rulings of this Court in the Supreme Court of Alabama."

The question of law is presented by the complaint setting forth, as it does, the statute and the facts, and does not advert to the former judgment discussed in State v. Clements, 217 Ala. 685, 117 So. 296; hence we observe that this record does not show a collateral attack upon the judgment of any court. For Direct and Collateral Attacks on Judgments, see 14 L. C. L. §§ 311, 312, pp. 838, 839.

The class of acts as that before us must be shown beyond a reasonable doubt to offend organic law, in order to justify the court in a judgment of nullification of such enactments of the general assembly. Ex parte Selma & Gulf R. Co., 45 Ala. 696, 728, 6 Am. Rep. 722; Ward v. McDonald, 201 Ala. 237, 243, 77 So. 827. And if "any doubt exists" with respect to its constitutionality, the practical construction heretofore given it ought to have great weight in determining the question. Cohens v. Virginia, 6 Wheat. 264, 5 L.Ed. 257; Bank of United States v. Halstead, 10 Wheat. 51, 62, 6 L.Ed. 264; Ogden v. Saunders, 12 Wheat, 214, 290, 6 L.Ed. 606; Pennoyer v. McConnaughy, 140 U.S. 23, 11 S.Ct. 699, 35 L.Ed. 363; Cooley's Const. L. 67. [126 So. 164]

The rule in this state is well stated in State ex rel. Clarke v. Carter, 174 Ala. 266, 279, 56 So. 974, and the uniform legislative interpretation of doubtful constitutional provisions, running through many years, is of weighty consideration with the courts. Parke v. Bradley, State Treasurer, 204 Ala. 455, 459, 86 So. 28; Ex parte Hardy, 68 Ala. 303; Moog v. Randolph, 77 Ala. 597; Farrior v. N.E. M. Sec. Co., 88 Ala. 275, 7 So. 200; Jones v. McDade, 200 Ala. 230, 75 So....

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