State v. Lutz

• Decision Date: 09 March 1933
• Docket Number: 6 Div. 187.
• Citation: 147 So. 429,226 Ala. 497
• Parties: STATE ex rel. SHIRLEY v. LUTZ et al.
• Court: Alabama Supreme Court

147 So. 429

226 Ala. 497

STATE ex rel. SHIRLEY v. LUTZ et al.

6 Div. 187.

Supreme Court of Alabama

March 9, 1933

Rehearing Denied April 20, 1933.

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Quo warranto by the State, on the relation of Joseph P. Shirley (who joins also as plaintiff) against R. E. Lutz, J. F Hickman, G. H. Hazelhurst, H. A. Stevens, and E. A. Boie, as members of the Board of Plumbers Examination and Registration of Alabama. From a judgment for respondents, plaintiff appeals.

Affirmed.

Ross Bumgardner, Ross & Ross, of Bessemer, and Benners, Burr McKamy & Forman, of Birmingham, for appellant.

Amzi G. Barber, of Birmingham, for appellees.

BOULDIN Justice.

This is a proceeding by quo warranto to oust respondents from the exercise of official authority as members of the "Board of Plumbers Examination and Registration of Alabama."

The primary purpose is to test the constitutionality of the act creating such board; or otherwise stated, to prevent usurpation of official powers which do not exist because the creating act is void.

The subject of the act in question, its purpose, and a synopsis of its provisions, are quite fully disclosed in the title, which reads:

"An Act

"To regulate the business and trade of plumbing in all counties in this State having a population of 100,000 or more according to the last or any subsequent Federal Census, to create a Board to be known as the Board of Plumbers Examination and Registration of Alabama; to provide for the appointment of the members of said Board of Plumbers Examination and Registration of Alabama, and to provide for the appointment of successors of the members thereof and for the organization of said board and for the remuneration of the members and officers thereof; to specify the powers and duties of said Board of Plumbers Examination and Registration and to provide the ways and means of collecting funds for its maintenance and functioning; to define the terms 'plumbing' 'master plumber' and 'journeyman plumber' for the purposes of this Act; to provide for the examination, registration and licensing of master plumbers and of journeyman plumbers engaged, engaging or desiring to engage in the business or handicraft of plumbing within such counties and to fix the fees to be assessed of applicants for examination, registration and licensing as such master plumbers or journeyman plumbers and for the renewals of such registrations and licenses; to authorize and empower said Board of Plumbers Examination and Registration of Alabama to conduct investigations and hearings of and concerning and violations of this Act and to grant unto said Board of Plumbers Registration and Examination the power and authority to revoke after hearing, any license issued by said Board on account of any violation or violations of any provision or provisions of this Act by any master plumber or any journeyman plumbers who may violate any of the provisions of this Act and to provide further penalties for any violation or violations of the provisions of this Act, and to provide for appeal to the various Circuit Courts of Alabama by any aggrieved person from any order, ruling, decree or revocation of such license by said Board of Plumbers Examination and Registration of Alabama and to provide for a seal and its use by said Board; and to repeal all laws in conflict herewith." Gen. Acts 1931, p. 764.

The act is challenged as a local, not a general law, under section 110 of the Constitution, and violative of section 106, for want of published notice as therein required.

As applied to legislative acts framed as general laws applicable to a class of counties, wherein the classification rests upon a population basis, we think no better statement of the rule can be made than was written by Justice Gardner in Reynolds, County Treasurer v. Collier, 204 Ala. 38, 85 So. 465, 467, and often quoted or restated in like terms in later decisions. For the purpose of a study of the act before us, we again quote same: "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." Vaughan v. State ex rel. Dawson, 212 Ala. 258, 259, 102 So. 222; Ward v. State ex rel. Lea, 224 Ala. 242, 139 So. 416, 417; State ex rel. Ward v. Henry, 224 Ala. 224, 139 So. 278; State ex rel. Camp v. Herzberg,

224 Ala. 636, 141 So. 553, and cases there cited; Wages v. State (Ala. Sup.) 141 So. 707.

Nothing in the present act presents a double classification, or other limitations hedging it about so as to prevent its operation in all counties now or hereafter coming within the population classification; nor is future legislation required to make it applicable to all such counties.

The act is challenged for want of a "substantial difference in population" within the rule above quoted.

It is pointed out that this act has present application only to Jefferson and Mobile counties, while Montgomery county has a population by the federal...