State v. Tunstall

• Decision Date: 30 June 1905
• Citation: 40 So. 135,145 Ala. 477
• Parties: STATE EX REL. HANNA ET AL. v. TUNSTALL.
• Court: Alabama Supreme Court

40 So. 135

145 Ala. 477

STATE EX REL. HANNA ET AL. v. TUNSTALL.

Supreme Court of Alabama

June 30, 1905

Rehearing Denied Jan. 30, 1906.

Appeal from Circuit Court, Calhoun County; John Pelham, Judge.

"To be officially reported."

Quo warranto by the state, on the relation of E. H. Hanna and others, against W. C. Tunstall, Jr. From a judgment for respondent, relators appeal. Affirmed.

McClellan C.J., and Denson, J., dissenting.

Matthews Martin & Matthews, for appellants.

Knox Acker & Blackmon, for appellee.

SIMPSON J.

This is an information in the nature of a quo warranto, and the first question raised is the right of the defendant (appellee) to the office of solicitor of Calhoun county, by virtue of the appointment by the Governor of Alabama under Local Acts 1903 p. 625. And it is claimed that the notice of the intention to apply for the passage of this act was not sufficient under section 106 of the Constitution.

This provision of our Constitution has been before this court several times, and, from the fact that the courts of other states having like provisions have declared that the Legislature is the sole judge as to whether the constitutional requirement has been met, we have not the benefit of the light which might have been thrown upon the subject by the adjudications of other tribunals. Said section 106 of the Constitution requires that the notice shall "state the substance of the proposed law." In the first case in which this section came under review, this court quotes from Worcester's Dictionary the meaning of the word "substance," to wit, "The essential or material part; essence; abstract; compendium; meaning," and holds that, while it is not necessary to publish the bill itself, yet the notice should contain "its essential and material parts, its essence, or an abstract, such as would give the people fair information of what it was." Wallace v. Board of Revenue, 140 Ala. 491, 504, 37 So. 321. And in a subsequent case, in which it was held that a notice of the intention to apply for the creation of a new county was sufficient, although it did not give the boundaries, and gave a name of the proposed new county different from that which was finally adopted by the Legislature, this court stated that the "substance" of that proposed law was the establishment of a new county, by taking territory from the counties named; there was nothing misleading or deceptive in the notice; and that, if it were required to go into all those particulars, "every change made by the Legislature in fixing and defining the boundaries, from that given in the notice, would be fatal to the enactment of the statute." Law v. State (Ala.) 38 So. 798. The Century Dictionary also defines "substance" as: "(1) That which receives modifications; essence. (2) Real or essential part; essence." "(5) The meaning expressed by any speech, or writing; the purport"--and gives the illustration from Shakespeare, "All of one nature, of one substance bred." It also gives a further definition as "the main part." Webster's International Dictionary defines "substance" (from sub stare to stand under) as the "substratum"; second the "most important element; the characteristic and essential components, the main part; essential import; purport"; and the great apostle gave it even a wider range when he said: "Faith is the substance of things hoped for." As stated by the chairman of the committee, when this section was before the convention, the object in view was that the community should not "be mislead as to the purpose of the law"; it was "to obviate advantage being taken of the public."

There are other provisions in our Constitution which have the same general purpose in view, though not identical with this one. Section 61 provides that "no bill, shall be so altered or amended, on its passage * * * as to change its original purpose." And section 45, which requires the subject to be clearly expressed in the title, has been frequently before this court, and, while we do not wish to be understood as intimating that "purpose," "subject," and "substance" are synonymous, yet the object sought to be attained in each case is the same. And in construing them we should have the same general end in view. Both our own court, and others, where there are similar constitutional provisions, have given this a broad and liberal interpretation, so as to carry out the intention of the Constitution framers. That purpose was very aptly expressed by Chief Justice Brickell in these words: "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's 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." State v. Street et al., 117 Ala. 207, 23 So. 807. While the requirements of this...