Wilkinson v. Stiles

• Decision Date: 17 May 1917
• Docket Number: 6 Div. 504
• Citation: 200 Ala. 279,76 So. 45
• Parties: WILKINSON v. STILES, Judge.
• Court: Alabama Supreme Court

76 So. 45

200 Ala. 279

WILKINSON v. STILES, Judge.

6 Div. 504

Supreme Court of Alabama

May 17, 1917

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Proceeding by Horace C. Wilkinson against J.P. Stiles, as Judge. From the decree rendered, petitioner appeals. Affirmed.

Horace C. Wilkinson, of Birmingham, pro se.

M.M Ullman, of Birmingham, for appellee.

ANDERSON C.J.

The petitioner seeks to have the respondent, Stiles, receive examine and certify as to a petition for holding an election for the purpose of abandoning the commission form of government in the city of Birmingham. The only authority for such action on the part of the respondent must come from the act of 1915, p. 770, and as the same expressly provides that it shall not apply to cities having a population of 35,000 or more, and as Birmingham belongs to said excepted class, the respondent had no lawful right to act upon the petition in the manner as sought by petitioner and properly declined to do so. It is insisted, however, by the appellant that the proviso, or exception part of the act, is invalid and should be stricken so as to make the act apply to all cities in the state. Of course, if the act is constitutional in its entirety, the petitioner has no standing, as the same does not apply to Birmingham, or if it is invalid in toto he has no right to the relief sought, as it is the only law which warrants a change by a city from the commission form of government. Therefore the only theory upon which the petitioner can be entitled to relief would be for this court to strike down the exception and uphold the act. In other words, apply the act to every city in the state notwithstanding the Legislature has in plain and unambiguous words said that the same shall not apply to cities having a population of 35,000 or more.

It is the general rule of statutory construction that if by striking out a void exception, proviso, or other restrictive clause, the remainder, by reason of its generality, will have a broader scope as to subject or territory, its operation is not in accord with the legislative intent, and the whole would be affected and made void by the invalidity of such part. Lewis' Sutherland on Statutory Construction, § 306 and cases cited under notes 67 and 68. The foregoing section 306 was quoted from and approved in the case of State ex rel. Collman v. Pitts, 160 Ala. 139, 49 So. 441, 686 135 Am.St.Rep. 79. If a clause in a statute which violates the Constitution cannot be rejected without causing the act to enact what the Legislature never intended, the whole statute must fall. Spraigue v. Thompson, 118 U.S. 90, 6 Sup.Ct. 988, 30 L.Ed. 115; Marsh v. Hanly, 111 Cal. 368, 43 P. 975; Kelley v. State, 6 Ohio St. 269. Here we have a clause expressly excepting cities of a population of 35,000 or more, and to strike said clause and uphold the rest of the act would extend the law to every city in the state, although the Legislature said that it should not do so. This is an entirely different question from the one considered in the case of State v. Davis, 130 Ala. 148, 30 So. 344, 89 Am.St.Rep. 23, and kindred cases, as they dealt with matter which was either not cognate to the title, or which involved two subjects, and where the act was...