State v. Martin

• Decision Date: 11 February 1909
• Citation: 48 So. 846,160 Ala. 181
• Parties: STATE EX REL. MCKINLEY ET AL. v. MARTIN.
• Court: Alabama Supreme Court

48 So. 846

160 Ala. 181

STATE EX REL. MCKINLEY ET AL. v. MARTIN.

Supreme Court of Alabama

February 11, 1909

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Quo warranto by the State of Alabama, on the relation of E. W McKinley and others, against H. L. Martin, to test defendant's right to the office of alderman in the city of Birmingham. From an order denying the writ, relators appeal. Affirmed.

Jere C King and J. S. Kennedy, for appellants.

F. E Blackburn, for appellee.

SIMPSON J.

This appeal is from the order of the circuit judge denying a writ of quo warranto to the respondent to test his right to the office of alderman in the city of Birmingham, etc. The substance of the petition is that the "act to alter or rearrange the boundary lines of the city of Birmingham," approved August 8, 1907 (Loc. Acts 1907, p. 902), known as the "Greater Birmingham Act," having become a law and an election thereunder held on January 6, 1908, the subsequent election for attaching the city of Avondale to said city of Birmingham, held June 6, 1908, being within the six months fixed by statute, within which no other election could be held, is void, and that therefore the election of the respondent, as a result of said election, is void.

When this question was recently before this court, in the case of State ex rel. Sigsbee et al. v. City of Birmingham et al., 48 So. 843, the only question raised by the pleading and insisted on by counsel was as to whether section 3 of said "Greater Birmingham Act" was violative of paragraph 29 of section 104 of the Constitution of 1901. It is now insisted that said "Greater Birmingham Act" is void, because the journals of the Legislature show that the requirements of the Constitution were not complied with in the passage of the bill through the Senate. The question now before the court was not involved in that decision. The case of M. & A. of Wetumpka v. Wetumpka W. Co., 63 Ala. 611, does not touch this question, but decides merely that this court will take judicial notice of the charter of a municipal corporation.

This court has frequently decided, both before and since the adoption of our present Constitution, that when the question is properly presented the court will "go behind the statute to the legislative records, to ascertain whether it has a legal existence" (Jones v. Hutchinson, 43 Ala. 721; Moody v. State, 48 Ala. 115, 17 Am. Rep. 28; Moog v. Randolph, 77 Ala. 597; Sayre v. Pollard, 77 Ala. 608; Walker v. City Council of Montgomery, 139 Ala. 468, 36 So. 23); but the court has never undertaken to go into an examination of the journals, when no suggestion is made of a defect therein. On the contrary, in a case which was not reported, this court refused to examine the journals on the mere general suggestion that error was apparent therein, without calling the attention of the court to the particular error. This rule is manifestly correct; for, in the numerous constitutional questions which come before this court, it would entail an enormous, and in most cases a fruitless, labor on the court to make an exhaustive investigation through the journals of both the Senate and the House. It is but reasonable, then, to presume that, if the diligence of counsel has not discovered any error in the journals, there is no failure to comply with the law therein shown, and that the act is constitutional on that point.

Our attention being now called to it, we find, from an examination of the Senate Journal of 1907, that House Bill No. 929, "to alter or rearrange the boundary lines of the city of Birmingham," was not passed in accordance with the requirements of the Constitution. Section 63 of the Constitution is imperative to the effect that, on final passage of a bill, the vote must be "taken, by yeas and nays, the names of the members voting for and against the same be entered upon the journals, and a majority of each house be recorded thereon as voting in its favor." The only official journal is that which is filed in the...