State v. Nelson

• Decision Date: 13 December 1923
• Docket Number: 8 Div. 611.
• Parties: STATE EX REL. BASSETT ET AL. v. NELSON ET AL.
• Court: Alabama Supreme Court

98 So. 715

210 Ala. 663

STATE EX REL. BASSETT ET AL. v. NELSON ET AL.

8 Div. 611.

Supreme Court of Alabama

December 13, 1923

Rehearing Denied Jan. 31, 1924.

Appeal from Circuit Court, Morgan County; James E. Horton, Jr. Judge.

Quo warranto by the State, on the relation of Gus Bassett and others, against James A. Nelson and others. From a judgment for respondents, relators appeal. Reversed and rendered.

Brown &amp Griffith, of Cullman, E. W. Godbey, of Decatur, Tennis Tidwell, of Albany, and Thomas C. McClellan, of Birmingham for appellants.

Callahan & Harris, of Decatur, and Eyster & Eyster, of Albany, for appellees.

MILLER J.

This is a quo warranto proceeding instituted on information in the name of the state by Gus Bassett and others, resident citizens of either the city of Decatur or the city of Albany in Morgan county, Ala., against James A. Nelson, W. A. Britton, and Charles Sittason. It avers the respondents have recently usurped, intruded into, and are now unlawfully holding without authority of law the offices of members of the board of commissioners of the city of Decatur, in Morgan county, Ala., and are exercising without authority of law the powers and authority of the governing board of the city, and have excluded the city council from the exercise of any of the powers, privileges, or franchises of the city of Decatur, and they are dominating and controlling all the income, property and rights of the city under the pretended authority of the board of commissioners. The information seeks to have them show to the court by what warrant or authority of law, if any, they exercise or claim to exercise the offices of the Board of Commissioners of the city of Decatur.

These respondents answer the information, and state they are not unlawfully and without authority of law holding these offices, but they are holding them by authority of the acts of the Legislature of Alabama, approved by the Governor of the state; that on August 28, 1923, the city of Decatur was a municipality and the city of Albany was a municipality; that the city of Decatur still exists, but the charter of the city of Albany was vacated on August 28, 1923, by an act of the Legislature. They further aver in their answer that on the 28th day of August, 1923, the Legislature did pass and the Governor approved five certain separate acts, which appear on the pages of the Local Acts of 1923 herein stated, and the titles to which read as follows:

"An act to vacate the charter of the city of Albany, Alabama." Local Acts 1923, p. 104.

"An act to alter or rearrange the boundaries of the city of Decatur, Alabama." Local Acts 1923, p. 121.

"An act to create a board of education for the enlarged territory of the city of Decatur, Alabama." Local Acts 1923, p. 102.

"An act to provide a form of government for the city of Decatur, Alabama, and to prescribe the powers and duties of a temporary board of commissioners, pending a change in the form of government from a city with a population under six thousand, to a city of a population of six thousand or more." Local Acts 1923, p. 105.

"An act requiring the city of Decatur to assume all liabilities of every kind whatsoever outstanding against the city of Albany, and vesting in the city of Decatur all property of every kind whatsoever, owned by the city of Albany, and conferring upon the city of Decatur the right to defend all actions against the city of Albany, and to prosecute all suits pending in the name of the city of Albany and to carry out street improvements or other public improvements already begun by the city of Albany." Local Acts 1923, p. 104.

These respondents state that under and by virtue of these acts of the Legislature there were created such offices as board of commissioners of the city of Decatur, and by virtue and under said acts they (the respondents) are members of the board of commissioners of the city of Decatur, being named such officers in one of the acts, the title to which is above set out, and they have qualified by taking the oath of office, and are holding the office and exercising its powers under these acts of the Legislature.

The relators demur to this answer of the respondents on the ground each and all of these acts of the Legislature are unconstitutional and void. They state in the grounds of the demurrer particularly the section of the Constitution which each of the acts respectively violates. The demurrers were overruled by the court.

The relators filed two replications to the answer: The first denied the allegations of the answer; and the second stated the city of Albany was, when the act entitled "A bill to be entitled an act to alter or rearrange the boundaries of the city of Decatur, Alabama," was passed, a municipality with a population of 7,500 or more, and the city of Decatur at that time was a city of a population of, to wit, 5,200; the cities of Albany and Decatur were at the time of the passage of this act existing municipalities in the state of Alabama; the taxable value of the property of Albany was, to wit, $5,000,000, and the taxable value of the property of Decatur was, to wit, $2,500,000, when this bill was passed; and the area of Albany was, to wit, twice the area of Decatur; and the two cities were immediately contiguous to each other. Demurrers of respondents to replication No. 2 of the relators were sustained by the court.

This cause was submitted to the court without a jury under an agreed statement of facts. The court held the acts mentioned were constitutional and valid; that the respondents were lawfully holding and exercising the powers and privileges of the offices of members of the board of commissioners of the city of Decatur under these acts of the Legislature; that they were not intruders, usurpers, or unlawfully holding or exercising these public offices; and entered a judgment according to its opinion and finding.

The rulings of the court, which were adverse to the relators, the appellants, on the demurrers, and this judgment of the court on the pleading and agreed statement of facts, are some of the many errors assigned and argued in the briefs of the parties.

The prime and most important question to be answered is: Is the act (No. 206-H. 621, Patterson) approved August 28, 1923 (page 121 of Local Acts 1923), unconstitutional and void? The appellants aver, insist, and claim this act violates section 45 of the Constitution of Alabama. The provision in section 45 pertinent to this proceeding and to this act reads as follows:

"Each law shall contain but one subject, which shall be clearly expressed in its title."

The title of the act reads as follows:

"An act to alter or rearrange the boundaries of the city of Decatur, Alabama."

The subject, the subject-matter, the body of the act, reads as follows:

"Be it enacted by the Legislature of Alabama, that the boundaries of the city of Decatur, Alabama, be altered, extended or rearranged so as to include the territorial area heretofore and immediately prior to the vacation of its charter, or now comprising the city of Albany, Alabama, that is, that the corporate limits of the city of Decatur shall include all of that territory within the present corporate limits of the city of Decatur and the following boundary lines: [Then follows a description by metes and bounds of all the territory embraced within the corporate limits of the city of Albany, and no other territory and no other area is added by the act to the city of Decatur.]"

This was the only "alteration or rearranging of the boundaries," if it can be so called, of the city of Decatur, which appears in the body of the act.

We are fully mindful that the courts hold that in passing on the constitutionality of acts of the Legislature all "reasonable presumptions are indulged in favor of legislative action"; but we also realize, if the infraction of the Constitution by the act is clear, it is mandatory, imperative, on the court to declare the statute unconstitutional and void, and maintain thereby the purity of the organic law, the Constitution of the state of Alabama. State v. Sayre, 118 Ala. 1, 24 So. 89; Ensley v. Simpson, 166 Ala. 366, 52 So. 61.

Is the subject, the subject-matter, appearing in the body of this act, clearly expressed in the title of the act? That is the question to be answered by this court. The court, through Justice Walker, in Ex parte Pollard, 40 Ala. 99 (which was quoted with approval by Justice Brickell in State v. Sayre, 118 Ala. 36, 24 So. 89), stated the following to guide and assist in the construction of this clause of the Constitution:

"The object of the constitutional provision was to prevent deception by the inclusion in a bill of matter incongruous with the title."

Judge Cooley declared and stated there were...