State v. Gullatt

• Citation: 98 So. 373,210 Ala. 452
• Decision Date: 13 December 1923
• Docket Number: 5 Div. 868.
• Parties: STATE EX REL. BROOKS v. GULLATT ET AL.
• Court: Supreme Court of Alabama

98 So. 373

210 Ala. 452

STATE EX REL. BROOKS v. GULLATT ET AL.

5 Div. 868.

Supreme Court of Alabama

December 13, 1923

Appeal from Circuit Court, Lee County; S. L. Brewer, Judge.

Quo warranto proceedings by the State of Alabama, on the relation of R. L. Brooks, and R. L. Brooks, individually, against C B. Gullatt, I. I. Moses, C. M. Knowles, Ashby Floyd, and H D. Cobb. From a judgment for defendants, plaintiff appeals. Reversed rendered, and remanded.

Rushton Crenshaw & Rushton, of Montgomery, and J. W. Kelley, of Seale, for appellant.

B. De G. Waddell and H. A. Ferrell, both of Seale, Denson & Denson, of Opelika, and W. J. Bird, of Ph nix, for appellees.

GARDNER J.

Quo warranto proceedings by the state, on the information of R. L. Brooks, who also joined himself as plaintiff with the state against C. B. Gullatt and others. The demurrers filed by the respondents to the complaint having been sustained by the court, plaintiff declined to plead further, and judgment was rendered accordingly for the defendants, from which judgment the plaintiff has prosecuted this appeal.

The first assignment of demurrer raises the question that R. L. Brooks, individually, is improperly joined as party plaintiff. This point is without merit. Section 5459, Code 1907; West End v. State, 138 Ala. 295, 36 So. 423; State v. Kitchens, 148 Ala. 390, 41 So. 871.

The complaint charges the respondents with holding office under and by virtue of the Act of August 9, 1923, the caption of which is as follows:

"To provide the form of the government of a municipality where the corporate limits of a municipality are altered or rearranged so as to include territory of another municipality lying in a different county; to provide for the appointment of officers and to fix their terms of office."

This act is designated No. 131 [Gen. Acts 1923, p. 99]. The constitutionality of this act is assailed upon numerous grounds, the most important of which is that it is a local law under the definition of section 110 of the Constitution of 1901, and repugnant to section 106 of the Constitution for the reason that no notice was given by the publication of the intention to apply for the enactment thereof.

The demurrer proceeds upon the theory that said act is not unconstitutional but valid, and that the complaint shows upon its face that the respondents hold office under legal authority. The constitutionality and validity of this act, therefore, is the primary question here presented for consideration.

On the same day of the approval of the above cited act, No. 131, there was approved another act, No. 130, the title of which is as follows:

"To alter or rearrange the boundary lines of the city of Ph nix City, Alabama, so as to include within the corporate limits of said municipality the territory now included within the town of Girard, Alabama, a municipal corporation, and also to include other territory not included within the corporate limits of either Ph nix City or Girard, Alabama." Local Act 1923, p. 52.

The body of this act rearranges the boundaries of the city of Ph nix City in Lee county, Ala., so as to include the territory embraced within the city of Girard, Russell county, ala., and also some additional territory not within the corporate limits of either municipality; and provides that the territory therein described shall thereafter constitute a part of the city of Ph nix City, Ala. This latter act was a local law, and that the requirements of section 106 of the Constitution were fully met is not questioned.

Section 1 of the act numbered 131 is as follows:

"Where the corporate limits of a municipality are altered or rearranged so as to include territory embraced in another municipality which latter municipality lies within a different county from the municipality whose corporate limits are altered or rearranged, that such municipalities shall be governed by a commission form of government consisting of five city commissioners who shall be appointed by the Governor immediately upon the altering or rearranging of the corporate limits. Two of said commissioners shall hold office for a term of two years and until their successors are elected and qualified. Three of said commissioners shall hold office for a term of four years and until their successors are elected and qualified. That the term of the commissioners elected to said office shall be for a period of two years."

If this act is a local law, it must fall, as, confessedly, section 106 of the Constitution, requiring advertisement, was not complied with. The determining question, therefore, is whether or not this act was a general or local one.

This court has recognized certain characters of classification proper for legislative purposes, particularly such as based upon substantial difference of population as a reasonable basis, and giving rise to some reasonable necessity for a difference in legislation concerning several classifications. In this respect much has been left to legislative discretion. This court has, however, given distinct warning that indiscriminate classification as a mere pretext for the enactment of laws essentially local or special cannot be allowed.

In Board of Revenue v. Huey, 195 Ala. 83, 70 So. 774, this court said:

"There is no reason forbidding a single classification, for legislative purposes, made by the coalescing effects of two elements or factors, reasonably related and associated and capable of making a single distinction, or of defining a discrimination, between types of a more general aggregation of persons or things. There is nothing objectionable in a segregation-for the legislative purpose of enacting a general law-of those subjects of legislation which have a common characteristic or common characteristics when measured or defined by related elements that combine to mark a distinction, or to discriminate them. If *** an element going to mark the distinction or discrimination sought to be established is without reasonable relation to the thing to be affected and the purpose to be accomplished by the legislation, guised as a general law, the legislative effort must fall because the means of attempted classification are inapt and inappropriate, and hence is arbitrary."

In the recent case of Reynolds v. Collier, 204 Ala. 38, 85 So. 465, we had for consideration the constitutionality of an act fixing the salary of the judge of the county court at $900 per year in all counties having a population not less than 23,150 and not more than 23,250, which act the court judicially knew applied only to Chilton county, and materially increased the salary of the county judge of that county. Many of our cases dealing with this question were there cited, and a review of these authorities would serve no useful purpose.

A result of a careful analysis of the decisions of this court bearing upon the question here under consideration was expressed in the following language:

"The effect of all of our decisions, in short, has been that where there is a substantial difference in population, and the classification is made in good faith, reasonably related to the purpose to be effected and to the difference in population which forms the basis thereof, and not merely arbitrary, it is a general law, although at the time it may be applicable to only one political subdivision of the state; but that if the classification bears no reasonable relation to the difference in population, upon which it rests, in view of the purpose to be effected by such legislation, and clearly shows it was merely fixed arbitrarily, guised as a general law, and, in fact, is a local law, it is then in plain violation of the Constitution and cannot be upheld."

This rule requires something more than a mere designation by such characteristics as will serve to classify, and under it neither mere isolation nor arbitrary selection is proper classification. As said by the Indiana court in Longview v. Crawfordsville, 164 Ind. 117, 73 N.E. 78, 68 L. R. A. 622, 3 Ann. Cas. 496:

"The marks of distinction on which the classification is founded must be such, in the nature of things, as will, in some reasonable degree, at least, account for or justify the restriction of legislation."

It but remains to apply the rule to the act under consideration. This act provides for a form of government of the municipality where the corporate limits have been altered or rearranged so as to include territory of another municipality which lies in a different county. There are in fact three distinct factors entering into this classification: First, the corporate limits of the municipality must have been altered or rearranged; second, such rearrangement shall include the territory of another municipality; and, third, such other municipality must be lying in a different county. The act, No. 130, approved on the same day as No. 131, fully meets each of these conditions. That act altered and rearranged the boundaries of Phoenix City, Ala., so as to include the city of Girard, which other municipality was situated in a different county; Ph nix City being in Lee county, and Girard, contiguous thereto, located in Russell county.

There are general laws providing for the merger and consolidation of contiguous cities, and also laws providing for extending the boundaries of cities, and it is suggested in brief of counsel for appellee that the law here in question not only applies to Ph nix City, but could also have application to the cities of Florence and Sheffield, as well, also, to the town of Waverly; but the act does not apply to municipalities which might be formed by consolidation or merger, but only in the event the corporate limits have been altered or rearranged so as to include territory of another municipality lying in a...