Swindle v. State

• Decision Date: 16 June 1932
• Docket Number: 6 Div. 153.
• Citation: 143 So. 198,225 Ala. 247
• Parties: SWINDLE, COUNTY TREASURER, v. STATE EX REL. PRUITT, PROBATION OFFICER.
• Court: Alabama Supreme Court

143 So. 198

225 Ala. 247

SWINDLE, COUNTY TREASURER, v. STATE EX REL. PRUITT, PROBATION OFFICER.

6 Div. 153.

Supreme Court of Alabama

June 16, 1932

Question Certified by Court of Appeals.

Application by the State, on the relation of Annie Louise Pruitt, as probation officer and clerk of the Domestic Relations Court of Walker County, for a writ of mandamus to Lummie Swindle as county treasurer, etc. From an order granting the writ respondent appealed to the Court of Appeals, which certified a constitutional question to the Supreme Court.

Question answered.

GARDNER and BOULDIN, JJ., dissenting.

Certification to the Supreme Court.

C. R BRICKEN, Presiding Judge.

Malcolm E. Nettles, of Jasper, for appellant.

L. D. Gray, of Jasper, for appellee.

Response of Supreme Court.

THOMAS J.

The constitutional question is certified by the Court of Appeals to this court for decision under section 7322, Code.

The question is: Did the trial court commit error in granting the writ of mandamus and ordering the writ to issue, commanding respondent, as treasurer of Walker county, to pay the warrant for $15 allowed, drawn, and payable to relator and petitioner as probation officer and clerk of the domestic relations court of Walker county?

The demurrer of respondent, among other things, was on the following ground: "Because that portion of section 2, which provides that the County shall pay to the Probation Officer, fifty cents for each day said prisoner is confined under sentence for violating section 2 of the Acts of 1919, on February 18, 1919, is violating section 45 of the Constitution of Alabama, in that the duties required by the said section as to allowances are not a part of, embraced in, cognate or germane to, the caption of said act."

The demurrer was overruled, and, upon the petition, answer, and evidence, the writ of mandamus was ordered as prayed, and the costs in that behalf incurred were taxed against respondent.

The act (Acts of 1915, p. 560), or so much thereof in section 1 as may fix a charge upon the counties of fifty cents per day, upon the sentence of the derelict, to be paid out of the general fund to a probation officer to be expended, etc., and "whether the county did or did not collect the same upon the said sentence, is foreign to the title of the said act," was condemned in Board of Revenue and Road Com'rs of Mobile County v. State ex rel. Roberts, 200 Ala. 456, 457, 76 So. 388. The majority said: "Fastening this liability upon the counties after the sentence, and regardless of what it may collect for the hire of the convict, is not germane or cognate to the general subject dealt with in the title of the act, and the inclusion of same in the body of said act was prohibitive of section 45 of the Constitution. Whether or not the elimination of this objectionable part of the section will affect the balance of same, or the remainder of the act, or whether or not the rest of the act is subject to the other constitutional objections, we need not decide, as the elimination therefrom of the objectionable part of section 1, as above pointed out, is decisive of the present case." 200 Ala. 457, 76 So. 388, 389; Fuqua v. City of Mobile, 219 Ala. 1, 2, 121 So. 696.

The Attorneys General, in opinions to county officials on this point (under the Acts of 1915, p. 560; Acts of 1919, page 176), formerly advised the nonliability of the county, unless the sum ordered paid was actually received by the county from the hire of said convict. Report of Attorney General, 1924-26, p. 314; Report of Attorney General, 1924-26, p. 336; 2 Opinion Attorney General, page 229, to Director of Child Welfare Department, of date of June 28th, 1927; Report of Attorney General, 1928-1930, page 183.

The opinion, however, to the county board of revenue of Tuscaloosa county, on July 10, 1931, under section 4480 of the Code and Gen. Acts 1927, pp. 52 and 54, was to the contrary.

It has been frequently announced that the courts will presume such an act as constitutional, unless it appears to contrary effect, when the meaning of the act is looked to as a whole and under existing law (Sadler v. Langham, 34 Ala. 311; Quartlebaum v. State, 79 Ala. 1; State ex rel. Wilkinson v. Lane, 181 Ala. 646, 62 So. 31; Smith v. Stiles, Judge of Probate, 195 Ala. 107, 70 So. 905; Board of Revenue v. McDanal, 213 Ala. 349, 105 So. 191), and beyond a reasonable doubt.

And under the amended statute, this court has treated the same as valid and constitutionally enacted; and the several acts on the subject have been construed and applied in pari materia. State ex rel. Sellers v. Murphy, Judge, 207 Ala. 290, 92 So. 661; Caylor v. State, 219 Ala. 12, 121 So. 12; State ex rel. Harmon v. Murphy, 211 Ala. 663, 101 So. 465; Ex parte Blue, 218 Ala. 113, 118 So. 147; Ex parte Newsome, 212 Ala. 168, 102 So. 216; Wynn v. State, 18 Ala. App. 397, 92 So. 520; Higgenbotham v. State, 20 Ala. App. 476, 103 So. 71; State v. Blackwell, 16 Ala. App. 500, 79 So. 198.

Adverting to the statute of 1915, page 560, which was condemned in Board of Revenue, etc., v. State ex rel. Roberts, 200 Ala. 456, 76 So. 388, and amended by the Acts of 1919, page 176, the provision of section 1, requiring the county to pay the sums indicated from general funds of the county not otherwise appropriated (and declared not germane or cognate to the title, Board of Revenue, etc., v. State ex rel. Roberts, supra), was not eliminated from section 1 of the act of 1915 as amended by § 2, Act 1919. However, the title to the act was amended so as to embrace the same matter. The words added to the title were: "Defining the obligation of counties in such cases." This amendment was sufficient to give notice that such obligations were imposed upon counties and their general funds not otherwise expended, and took the act without the influence of the decision in Board of Revenue, etc., v. State ex rel. Roberts, 200 Ala. 456, 76 So. 388, or the analogy to be found in Roper v. State ex rel. Day, 210 Ala. 440, 98 So. 286.

We are of opinion, and so hold, that the act (Acts 1919, p. 176) in respects here challenged by demurrer is not to be condemned for duplicity; that the matter embraced in its section 1 is cognate and germane and offends to provision of section 45 of the Constitution. Fuqua v. City of Mobile, 219 Ala. 1, 121 So. 696, and authorities; Lindsay v. United States Saving & Loan Ass'n, 120 Ala. 156, 24 So. 171, 42 L. R. A. 783; Ballentyne v. Wickersham, 75 Ala. 533; Harry T. Hartwell, et al. v. State ex rel. Virginia Bullock Willis (Ala. Sup.) 142 So. 678. It has been carried forward in the last Code as sections 4480, 4481, Code of 1928, and was the subject of consideration in Ex parte Blue, 218 Ala. 113, 118 So. 147, as to support during pending appeal.

Would it "be illegal to pay said sum" by reason of other provisions of the Constitution?

Thus we are brought to a consideration of the last objection urged against that statute; that it is offensive to section 94 of the Constitution, which forbids the Legislature to authorize any county to lend its credit or to grant public money or thing of value in aid of, or to any individual, etc. Southern Railway Co. v. Hartshorne, 162 Ala. 491, 50 So. 139, as to the purchase of land by the city for the location of a depot within the municipality. The object and purpose of this provision is thus stated in Garland v. Board of Revenue of Montgomery County, 87 Ala. 223, 226, 6 So. 402:

"In adjudicating the constitutionality of a statute, it is the duty of the courts, in deference to the legislative department of the government, to so construe both the constitutional and the statutory provisions, if possible, that the statute may be upheld; but a constitutional provision, protective of the rights of persons and property, and remedial in its nature, is not to be construed so literally or strictly as to defeat the purposes for which it was intended; and a new provision, incorporated in a revised constitution, is to be construed in connection with the facts of public history, showing the causes in which it originated, and the mischief it was intended to remedy and prevent." "'In no project originated by individuals, whether associated or otherwise, with a view to gain, are the municipalities named permitted to participate in such manner as to incur pecuniary liability. They can neither become stockholders, nor furnish money or credit for the benefit of the parties interested therein.' Operation should be given to the provision in the constitution co-extensive with the evils to be prevented. A loan of credit, or grant of money or thing of value in aid of an individual or corporation, in any mode, directly or indirectly, falls within its operation."

In Ala. State Bridge Corp'n v. Smith, 217 Ala. 311 315, 116 So. 695, 698, it was said: "Section 94 relates to private corporations only"; in Griffin v. Jeffers, 221 Ala. 649, 130 So. 190, the right of a county to extend credit to a bridge corporation by way of lease for a long term was denied; and in Stone, County Treas., v. State ex rel. Mobile Broadcasting Corp., 223 Ala. 426, 136 So. 727, it was held the statute authorized the county's resources as to location and promoting industrial and manufacturing plants and other industries not extended, by reason of section 94 of the Constitution, to the contract in question with Mobile...