Tucker v. State ex rel. Poole, 1 Div. 903

• Citation: 231 Ala. 350,165 So. 249
• Decision Date: 07 November 1935
• Docket Number: 1 Div. 903
• Court: Supreme Court of Alabama
• Parties: TUCKER et al. v. STATE ex rel. POOLE, Solicitor.

165 So. 249

231 Ala. 350

TUCKER et al. v. STATE ex rel. POOLE, Solicitor.

1 Div. 903

Supreme Court of Alabama

November 7, 1935

Rehearing Denied Jan. 16, 1936

Appeal from Circuit Court, Clarke County; Oscar L. Gray, Judge.

Quo warranto by the State of Alabama, on the relation of F.E Poole, as Solicitor, against J.W. Tucker and others. From a judgment for relator, respondents appeal.

Affirmed.

Rushton Crenshaw & Rushton, of Montgomery, and Adams & Gillmore, of Grove Hill, for appellants.

A.A Carmichael, Atty. Gen., and Chas. L. Rowe, Asst. Atty. Gen., for appellee.

GARDNER Justice.

The validity of the local act here in question is challenged by counsel for appellant in brief and oral argument upon the sole ground of the insufficiency of the published notice required by section 106 of our Constitution. Two published notices appear in the House Journal, one referred to in these proceedings as "Exhibit A," wherein the entire bill was set out, and the other, "Exhibit B," which purports to state the substance only of the proposed act. The former (Exhibit A) appears both in the Senate and House Journals. The latter (Exhibit B) is found only in the House Journal.

In order to meet the requirements of section 106 of the Constitution, the proof as to publication must be spread upon the journal of each house. Such is the plain language of the Constitution, and so expressly decided in Sellers v. State, 162 Ala. 35, 50 So. 340.

As Exhibit B does not appear in the Senate Journal, resort thereto may not be had to sustain the act, and regardless of any argued question as to its sufficiency otherwise, further consideration thereof may be laid to one side. The fate of the act, therefore, must rest upon the sufficiency of Exhibit A, which appears in the journal of each house.

This published notice was but a copy of the proposed bill, and the act passed as thus published, and proof as to its publication in a newspaper of the county for four successive weeks fully appears from the affidavit accompanying the same as shown by the journals. Upon these grounds, therefore, no objection is interposed.

The fatal defect upon which appellants rest their argument is the omission from the published notice of an intention to apply to the Legislature for its passage. The published notice begins as follows:

"Notice.

"A bill to be entitled an Act to abolish the County Board of Education of Clarke County, Alabama, to create in lieu thereof the County School Commission of Clarke County, Alabama; to provide for the appointment and election of the members thereof and to prescribe their duties and powers, terms of office and compensation, to provide for a chairman of said commission and to repeal all laws in conflict herewith.

"Be it enacted by the Legislature of Alabama:"

Then follows the various sections of the bill, twenty-nine in number, and the affidavit of the publisher attached thereto.

Appellee insists that under the authorities of Jacobs v. State, 144 Ala. 98, 40 So. 572, and Sisk v. Cargile, 138 Ala. 164, 35 So. 114, the affidavits supply any deficiency in this respect. But the proof in those cases differs materially from that here presented, and we do not consider those cases as applicable. We are of the opinion, however, that the sufficiency of the published notice may rest upon broader grounds.

In considering this question the cardinal rule of construction should be borne in mind--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. Speaking of section 45 of our Constitution, similar in purpose to section 106 (State v. Allen, 219 Ala. 590, 123 So. 36), the court in State v. Street, 117 Ala. 203, 23 So. 807, 808, said: "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." And this same reasoning was applied to section 106 of the Constitution in State ex rel. Hanna v. Tunstall, 145 Ala. 477, 40 So. 135, where it was observed that the courts should give this provision likewise a broad and liberal interpretation, so as to carry out the intention of the makers of the Constitution. Like thought is expressed in State ex rel. Covington v. Thompson, 142 Ala. 98, 38 So. 679, 682, in the following language: "Constitutions are made for practical purposes, *** and in the construction of them we are to take into consideration the conditions which confronted the Constitution makers, and we are, if possible, to give the instrument such construction as will carry out the intention of the framers, and make it reasonable rather than absurd." To like effect is the statement in the more recent case of Byrd v. State, 212 Ala. 266, 102 So. 223, 225: "The same rules of construction obtain in passing upon those provisions as apply to other constitutional limitations upon legislative power. The courts seek to sustain and not to strike down the enactments of a co-ordinate department of the government. If, with the aid of all reasonable intendments, the act can be given effect without violation of the letter and spirit of the Constitution, it will be sustained. All reasonable doubt is resolved in favor of the action of the Legislature."

The evil intended to be corrected by section 106 of the Constitution was pointed out in Wallace v. Board of Revenue, 140 Ala. 491, 37 So. 321, and its purpose declared to be the prevention of deception of those immediately affected by the local legislation, to the end that they may have a fair opportunity to protest against and oppose its enactment. "The aim is to bring knowledge of the proposed law to the body of the people of the county through a medium usually carrying them news of public affairs--a newspaper." Byrd v. State, supra.

Our decisions disclose that as to matters of form and detail, not affecting the spirit and purpose of the Constitution, a liberal interpretation has been indulged to uphold rather than strike down the act. Among the more recent of our cases may be noted Byrd v. State, supra, where judicial knowledge was resorted to in aid of the published notice, which, very clearly, met the full purpose of this constitutional provision. Among the earlier cases may be cited, to like effect, Law v. State, 142 Ala. 62, 38 So. 798, where resort was had to the presumed knowledge of other constitutional provisions on the part of the citizens immediately affected by the proposed legislation, in order to demonstrate that the matter of omission in the published notice in no manner tended to destroy or impair the true meaning and purpose of the Constitution.

On the other hand, where the claimed deficiency was such as to render it probable that the public immediately interested in the proposed legislation might be misled or deceived, or not sufficiently informed, the court has not hesitated to strike down the enactment as violative of this constitutional provision. Commissioners Court of Winston Co. v. State, 224 Ala. 247, 139 So. 356; State v. Allen, 219 Ala. 590, 123 So. 36; First Nat. Bank v. Smith, 217 Ala. 482, 117 So. 38; Wallace v. Board of Revenue, 140 Ala. 491, 37 So. 321. And in Sellers v. State, 162 Ala. 35, 50 So. 340, it was held there was no proof of notice spread upon the Senate Journal for failure of the name of the officer taking the affidavit to appear either by signature to the jurat or in the body of the affidavit--thus resulting in a plain violation of the provisions of section 106 of the Constitution.

Coming to the instant case, there isomitted from the published notice the matter of intention to offer the bill for passage in the Legislature. Guided by the above-noted rules, we are persuaded this omission is not fatal. True it is that section 106 provides that notice of such intention must be given by publication, which notice shall state the substance of the proposed law. But there is no specific direction that the notice shall in express language so indicate, and, as previously observed by this court, the Constitution has prescribed no particular form in which the notice shall be given. Ex parte Kelly, 153 Ala. 668, 45 So. 290. Since, then, it is not specifically required to be so stated in express language in the notice, there would result no violation of the letter of the Constitution by its omission therefrom. And if, from the notice as published, the intention to offer the proposed law for passage is necessarily inferred, we conclude that the requirements of the Constitution in this regard have been sufficiently met.

Here the proposed bill is published in full under the heading "Notice." It discloses upon its face it is a bill ready to be offered for legislation, and not a completed enactment. Presumably the public immediately affected were familiar with the law (22 Corpus Juris 148), and knew the requirements of section 106 of the Constitution. Law v. State, supra. They therefore knew that for the legal enactment of a local law the intention to apply for its passage must appear by proper publication of its substance. They also knew that it must be done without cost to the state (State ex rel. v. Carter, 174 Ala. 266, 56 So. 974), and that of consequence some one or more interested persons have made arrangements for its publication, which bill contemplated a very material change in the law then in existence. With a knowledge of all these matters and of the legal requirements in regard to the passage of a local law, and viewed from a common-sense standpoint, there could be no other reasonable conclusion...