State v. Street

• Citation: 117 Ala. 203,23 So. 807
• Parties: STATE v. STREET ET AL.
• Decision Date: 16 June 1898
• Court: Supreme Court of Alabama

23 So. 807

117 Ala. 203

STATE v. STREET ET AL.

Supreme Court of Alabama

June 16, 1898

Appeal from circuit court, Marshall county; James A. Bilbro, Judge.

T. A Street and others were indicted for failure to discharge their duty as members of the court of county commissioners of Marshall county. A demurrer to the indictment was sustained and the state appeals. Reversed.

Wm. C Fitts, Atty. Gen., for the State.

O. D. Street, for appellees.

BRICKELL C.J.

The indictment alleges that two of the defendants are members of the court of county commissioners of the county of Marshall, and that the other defendant is the judge of probate of the county, and that they willfully failed to discharge duties imposed on them by an act of the last general assembly, approved February 18, 1897, entitled "An act for the improvement of roads and bridges in Marshall county, Alabama." Pamph. Acts 1896-97, pp. 1228-1236. A demurrer was interposed to the indictment, assigning 10 causes. The ninth and tenth causes assail the constitutionality of the act, and these causes were sustained; and, from the judgment sustaining them, this appeal is prosecuted by the state, in pursuance of the statute (Cr. Code 1896, § 4315).

The first insistence in support of the judgment of the court below is that the act offends the clause of the second section of the fourth article of the constitution which declares, with exceptions it is not now necessary to enumerate, that "each law shall contain but one subject, which shall be clearly expressed in its title." The proposition in support of the objection that the act offends this limitation we state as it is stated in the brief of counsel: "The act is unconstitutional, because its title and body embrace two separate and distinct subject matters, viz.: (1) The improvement of roads; (2) the improvement of bridges." From the multiplicity of judicial decisions to which this limitation has given rise since its introduction into the organic law of the state, and since the introduction of a corresponding limitation into the constitutions of many of the other states, certain principles may be deduced governing its construction and application, upon which there is very general, if not unbroken, concurrence of opinion. The limitation is not excepted from the cardinal rule that it is only a clear violation of the constitution which will justify the courts in overruling the legislative will. Every legislative act is presumed to be constitutional, and every intendment is in favor of its validity. Cooley, Const. Lim. (6th Ed.) 218. While the limitation must be so construed and applied as to avoid and suppress the mischief against which it is directed, the construction must not be strict, embarrassing legislation by making laws unnecessarily restrictive in their scope and operation, or by the multiplication of their number, by an inhibition of the legislature from the incorporation in one act of all matters properly connected with one general subject. Id. 172. "By this generous principle of liberal construction," as it is termed by Mr. Freeman, in the annotations to the case of Davis v. State, 61 Am. Dec. 339, all well-considered adjudications are guided. The legislature must for itself determine how broad and comprehensive the subject of an enactment shall be, and the degree of particularity which must be observed in the title defining it. And so long as the generality of a title is not "made a cover to legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection," there is no cause of objection. Cooley, Const. Lim. (6th Ed.) 172, 173. When the title of an act expresses but one general subject, and all its provisions are allied to the subject expressed, or, as is usually said, are germane or cognate to it, all the purposes of the limitation are satisfied. This is the real test in each particular case: When the title expresses one general subject, however broad and comprehensive the subject may be, whether the act includes provisions which by no fair intendment can be considered as having connection or relation to the subject expressed. Applying these rules, if we were not compelled to indulge all reasonable presumptions in favor of its constitutionality, we could not hesitate to affirm that the act is free from all just objection as wanting in clearness in the expression of its subject in the title, or of duplicity in the expression of two dissimilar subjects, not having logical and legal connection. It is difficult to conceive of any two matters so treated by the common law, and by legislation, and in popular understanding, as constituting but one general subject, as public roads and bridges. In Elliott, Roads & S. 4, 5, a road is defined as "a passage ground appropriated to public travel," and public roads as "such as are open to the public, and under the control of governmental instrumentalities, as counties, townships, road districts, and local subdivisions of a similar character. Such roads are set apart to the public, and are maintained at public expense." In Bouvier's Law Dictionary (Rawle's Ed., vol. 1) public bridges are defined as such "as form part of the highway, common, according to their character, as foot, horse, or carriage bridges, to the public generally, with or without toll; though their use may be limited to particular occasions, or the seasons of flood or frost." And in the standard work of Elliott, to which reference has just been made (page 20), public bridges are defined as structures across a creek, river, or other natural body of water, or canal, ditch, or other artificial water way, erected for the accommodation of the public. And it is said a bridge is an essential part of a road, and the "locating of a bridge is but the laying out of a highway." In all our legislation, roads and bridges have been associated as parts of one general subject, placed under the superintendence and control of the court of county commissioners. Clay's Dig. p. 506, §§ 1-41. In the subsequent codifications of the statutes, in which they were arranged in chapters and articles, a chapter has been devoted to "Roads, Bridges, Ferries, and Water Courses," divided into articles, each article but a subdivision of the general subject. Code 1886, p. 347, c. 14. The act is not subject to the objection of repugnancy to the clause of the constitution invoked to defeat it.

The next insistence against the validity of the act is in the argument of counsel embodied in these words: "The constitution of the state (article 11, § 5) provides: 'No county in this state shall be authorized to levy a larger rate of taxation in any one year, on the value of the taxable property therein, than one-half of one per centum.' This is not only a limitation upon the...