Town of Tallassee v. Toombs

• Decision Date: 03 July 1908
• Citation: 157 Ala. 160,47 So. 308
• Parties: TOWN OF TALLASSEE ET AL. v. TOOMBS ET AL.
• Court: Alabama Supreme Court

47 So. 308

157 Ala. 160

TOWN OF TALLASSEE ET AL. v. TOOMBS ET AL.

Supreme Court of Alabama

July 3, 1908

Appeal from Chancery Court, Elmore County; W. W. Whiteside Chancellor.

Bill by O. C. Toombs and others, as taxpayers and citizens, against the town of Tallassee and its mayor, aldermen, and dispensary commission, to enjoin such town and its officers from operating a dispensary therein. Decree for complainants, and defendants appeal. Affirmed.

McClellan J., dissenting.

John V Smith and W. A. Jordan, for appellants.

Chilton & McKenzie, for appellees.

ANDERSON J.

Section 106 of the Constitution of 1901 is as follows: "No special, private or local law shall be passed on any subject not enumerated in section 104 of this Constitution, except in reference to fixing the time of holding courts, unless notice of the intention to apply therefor shall have been published without cost to the state, in the county or counties where the matter or thing to be affected may be situated, which notice shall state the substance of the proposed law and be published at least once a week for four consecutive weeks in some newspaper published in such county or counties, or if there is no newspaper published therein, then by posting the said notice for four consecutive weeks at five different places in the county or counties prior to the introduction of the bill; and proof by affidavit that said notice has been given shall be exhibited to each house of the Legislature, and said proof spread upon the journal. The courts shall pronounce void every special, private or local law which the journals do not affirmatively show was passed in accordance with the provisions of this section." Section 107 says: "The Legislature shall not, by a special, private or local law, repeal or modify any special, private or local law except upon notice being given and shown as provided in the last preceding section."

It will be observed, from the last-quoted section, that notice must not only be given of the substance of the intended law, but of the local law also, which it is intended to repeal or modify. It is not sufficient to give notice of the intention to repeal or modify all laws in conflict; but notice must be given of the substance of the laws intended to be repealed or modified by the new law. The notice in question had no reference to the existing prohibition law (Acts 1851-52, p. 262), but merely recites that all laws in conflict with the proposed law would be repealed. This in no sense gave such notice of the substance of the existing act as is required by section 106, and which said notice is made applicable to the repeal or modification of laws by the very terms of section 107. It may be that the law does not require separate and distinct notices of the substance of the bill to be enacted and of the laws to be thereby repealed or modified; but it is just as necessary to give notice of the substance of the laws repealed or modified as of those to be enacted. Certainly notice of the substance of the proposed law is required by the terms of section 106, and section 107 can have no application to laws to be enacted, but must apply to notice of the substance of laws to be repealed or modified, else it would be meaningless and deserving of no place in the Constitution, and we cannot say that the framers of our organic law inserted said section 107 for a vain and useless reason. Of course, where the sole purpose of a law is to repeal or modify an existing law, notice of the substance of the proposed law would naturally be notice of the substance of the law sought to be repealed or modified; but when a bill goes beyond the mere repeal or modification of a law, and provides for certain things, although in conflict with existing local laws, notice of the substance of the proposed law, with the further recital, "and to repeal all laws in conflict with same," is insufficient, for failing to contain the substance of the laws to be repealed or modified. The notice in question gives the substance of the law establishing the dispensary, but fails to give the substance of the act of 1852, and which was necessary in order to repeal same.

We are aware of the rule that the act should not be deemed unconstitutional, unless to do so is essential to a decision of the case, notwithstanding it may be unconstitutional; also that, where there is a field of operation for two laws, the latter should not be deemed a repeal of the former by mere implication, but force and effect should be given to both to the extent of an operation of both without a conflict. City of Montgomery v. National B. & L. Association, 108 Ala. 336, 18 So. 816. It may be that beat 3 contains territory other than what is within four miles of the factory and covered by the act of 1852, and that there is a field of operation for both laws--prohibition within four miles of said factory and dispensaries under the act of 1907 in all towns located in said beat and over four miles distant from said factory. The bill, however, is silent as to the size of said beat 3, and unless it contains territory more than four miles distant from the factory there can be no field of operation for both laws. The bill does not proceed upon the idea that there is a field of operation for both laws, but the...