Wages v. State, 6 Div. 252.

• Citation: 141 So. 709,25 Ala.App. 84
• Decision Date: 29 March 1932
• Docket Number: 6 Div. 252.
• Parties: WAGES v. STATE.
• Court: Alabama Court of Appeals

141 So. 709

25 Ala.App. 84

WAGES v. STATE.

6 Div. 252.

Court of Appeals of Alabama

March 29, 1932

Rehearing Denied April 12, 1932.

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.

L. L Wages was convicted of engaging in the business of barbering without license issued by the Barber's Commission, and he appeals.

Affirmed.

Conforming to answer to certified questions by Supreme Court in 141 So 707.

Certiorari denied by Supreme Court in Wages v. State (6 Div 156) 141 So. 713.

p>Ross, Bumgardner, Ross & Ross, of Bessemer, for appellant.

Thos. E. Knight, Jr., Atty. Gen., James L. Screws, Asst. Atty. Gen., and Horace C. Wilkinson and John C. Morrow, both of Birmingham, for the State.

RICE, J.

Appellant was convicted of the offense of violating the terms of the act of the Legislature of Alabama appearing in General Acts of Alabama 1931 from pages 615 to 620, entitled "An Act to define, regulate and license barbers and barber colleges, and other like businesses in counties of the State of Alabama having a population of three hundred thousand or over, according to the last or any subsequent Federal Census; to create a barbers' commission for said counties; and to provide a penalty for the violation of the provisions hereof."

His arrest, trial, and conviction are in all respects regular-provided the act referred to was constitutionally enacted.

It is agreed that said act was not "published, etc.," as required by section 106 of the Constitution of 1901, but was passed as a "general law," as defined by section 110 of the said Constitution.

Observing that the act in question applied only to counties "having a population of three hundred thousand or over," and "consulting the federal census of 1930," it was clear to us that same "at this time applies only to Jefferson County." Reynolds, etc., et al. v. Collier, 204 Ala. 38, 85 So. 465, 467. Consulting, further, this same federal census of 1930, it is (or was) apparent that, even granting that the ratio of increase in population of that county in the state having the greatest number of inhabitants next after Jefferson (to wit, Mobile county), maintained between 1920 and 1930 (and, surely, it is obvious to all, there has been no reason, since 1930, to anticipate such), should be kept up, it would be some seventeen or eighteen years before the act in question would apply to that county (the other, or any other, counties of the state being still more, and much more, remotely concerned) we thought, in keeping, as we conceived, with the rule announced in the opinion in the case of Reynolds, etc., et al. v. Collier, supra, that the act under which appellant was prosecuted was a "local law," and hence the provisions of section 106, Constitution, supra, not being complied with in its enactment, invalid.

The rule we refer to, taken from the opinion in Reynolds, etc., et al. v. Collier, supra, is as follows: "The effect of all of our decisions, in short, has been that where there is a substantial difference in population, and the classification is made in good faith, reasonably related to the purpose to be effected and to the difference in population which forms the basis thereof, and not merely arbitrary, it is a general law, although at the time it may be applicable to only one political subdivision of the state; but that if the classification bears no reasonable relation to the difference in population, upon which it rests, in view of the purpose to be effected by such legislation, and clearly shows it was merely fixed arbitrarily, guised as a general law, and, in fact, is a local law, it is then in plain violation of the Constitution and cannot be upheld." (Italics ours.)

Of course, when we read the majority opinion of the Supreme Court in the case of State v. Clements et al., 220 Ala. 515, 126 So. 162, we were, naturally, uncertain as to just how the rule we have quoted, above, would be applied in this case. But the said rule still stood, so far as we could find; and, under it, we were constrained to refer the question of the constitutionality vel non of the act here in question to the Supreme Court. This we did, as shown by the two papers following, to wit:

"To the Honorable Supreme Court of Alabama:

"Under the provisions of section 7322 of the 1923 Code of Alabama, we hereby submit to the Supreme Court of Alabama for determination, the question of the validity, vel non, of act of the Legislature of Alabama appearing in General Acts of Alabama 1931 from pages 615 to 620, entitled 'An Act to define, regulate and license barbers and barber colleges, and other like businesses in counties of the State of Alabama having a population of three hundred thousand or over, according to the last or any subsequent Federal Census; to create a barbers' Commission for said counties; and to provide a penalty for the violation of the provisions hereof.'

"Said act referred to is endorsed in the duly published volume of the Acts of 1931 as that it 'Became a Law July 24, 1931, under Section 125 of the Constitution.'

"In a proceeding now pending before this court wherein one L. L. Wages is the appellant and the state of Alabama is the appellee, the above mentioned and described act of the Legislature is attacked as being in violation of the Constitution of Alabama.

"It appears that no notice of 'intention to apply' for the passage of the act referred to was given, in accordance with section 106 of the Constitution of 1901.

"We are of the opinion that the act is a local one, in the sense meant by section 110 of the said Constitution, and, no notice, etc., having been given, as above (Const. § 106) is therefore void.

"We are further of the opinion that the subject of the Act, as passed, is not 'clearly expressed in its title'-this, in violation of section 45 of the Constitution of 1901, this because the title would restrict the operation of the act to certain designated Counties (we think to only one County), while the 'body' of the act would make it applicable to all the Counties of the state.

"Being without authority to 'strike down' a statute, and believing the above mentioned and described act void, for the reasons noted-perhaps others-we are, as above stated, submitting the question of its constitutionality, vel non, to you.

"With great respect,

"C. R. Bricken,

"Presiding Judge of the Court of Appeals of Ala.

"Wm. H. Samford,

"Associate Judge, etc."

"James Rice,

"Associate Judge, etc.

"Response to Certified Question by the "Court of Appeals of Alabama:

"To the Honorable Court of Appeals of Alabama:

KNIGHT J.

"In reply to your inquiry as to whether or not the Act of the Legislature of Alabama (Gen. Acts 1931, p. 615), entitled 'An Act to define, regulate and license barbers and barber colleges, and other like businesses in counties of the State of Alabama having a population of three hundred thousand or over, according to the last or any subsequent Federal Census; to create a barbers' Commission for said counties; and to provide a penalty for the violation of the provisions hereof,' is a local law within the meaning of section 110 of the Constitution, and therefore void under section 106, no notice of the intention to apply therefor having been given as required by the latter provision of the Constitution. And whether or not the above referred to Act offends section 45 of the Constitution, in that the subject of the Act is not 'clearly expressed in its title,' for the reason that the title 'would restrict the operation of the Act to certain designated counties, while the "body" of the Act would make it applicable to all counties of the State.'

"We will consider the questions in the order submitted.

"In passing upon the validity of the act in question this court will, of course, indulge all presumptions and intendments in favor of its constitutionality, and will accord to the lawmaking body of the state government sincerity of purpose and fairness in dealing with the people of the state. And we will not assume that the population classification was arbitrarily fixed, but rather that their action, in the given instance, was fairly taken and had for the purpose of meeting conditions, that it honestly thought existed, or might exist in the larger and more populous counties of the State.

"This court has long committed itself, in line with the holdings of other courts, to the proposition that population classification, made the basis for enactments, would be sustained in cases where there is a substantial difference in population, and the classification is made in good faith, reasonably related to the purpose to be effected and to the difference in population which forms the basis thereof, and not merely arbitrarily. Acts passed as general laws, based upon such population classification, and meeting the above test, are valid in that respect, although at the time of their enactment they can, and do only apply to one county or city in the State. State v. Gullatt, 210 Ala. 452, 98 So. 373; Board of Revenue of Jefferson County et al. v. Huey, 195 Ala. 83, 70 So. 744; State ex rel. Gunter et al. v. Thompson et al., 193 Ala. 561, 69 So. 461; State ex rel. Mims v. Bugg et al., 196 Ala. 460, 71 So. 699.

"There is nothing in the recent case of Henry, as Treas. v Wilson (Ala. Sup.) 139 So. 259, at present term, which conflicts, in fact, with the above...