Yeilding v. State ex rel. Wilkinson

• Decision Date: 04 April 1936
• Docket Number: 6 Div. 887
• Parties: YEILDING et al. v. STATE ex rel. WILKINSON.
• Court: Alabama Supreme Court

167 So. 580

232 Ala. 292

YEILDING et al. v. STATE ex rel. WILKINSON.

6 Div. 887

Supreme Court of Alabama

April 4, 1936

Rehearing Denied April 30, 1936

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Quo warranto by the State of Alabama, on the relation of Horace C. Wilkinson, against Howard Yeilding, James C. Lee, and Thomas T. Huey, as members of the personnel board of Jefferson county. From a judgment of ouster, respondents appeal.

Reversed and rendered.

BROWN and THOMAS, JJ., dissenting.

Ernest Matthews, R.H. Scrivner, and Frank Bainbridge, all of Birmingham, for appellants.

Horace C. Wilkinson, of Birmingham, for appellee.

KNIGHT Justice.

Proceedings in the nature of quo warranto instituted by the state of Alabama on relation of Horace C. Wilkinson, seeking to oust the appellants from the office of members of the personnel board of Jefferson county, Ala. This board was created by an act of the legislature of Alabama, approved August 28, 1935. General Acts of Legislature 1935, p. 691.

The title of the act, under which the respondents attempted to justify their holding of said office, reads: "To create and establish in each County of the State of Alabama which has a population of 200,000 or more people, according to the last Federal Census, or which may hereafter have a population of 200,000 or more people, according to any subsequent Federal Census, a County wide Civil Service System, affecting certain personnel whose compensation is now or may hereafter be payable in whole or part from the public funds of such counties or municipalities located therein; to create a Citizen Supervisory Commission and to create a Personnel Board and other agencies for the supervision and administration of said System in each of such Counties; to define the scope and extent of said System and the powers duties and authority of said Commission, Board and other agencies; to regulate and define the manner, form and extent of the control, supervision and authority of such agencies over such Personnel and over such counties and municipalities therein; to provide for payment of the expenses of each such agency and for a division of such expense between the county affected and the municipalities therein; to provide penalties for the violation of this Act and of rules and regulations adopted pursuant thereto; and to repeal all laws and parts of laws inconsistent with the provisions hereof."

On the hearing of the cause, the court was of the opinion the act in question was unconstitutional and void, and entered judgment of ouster accordingly. From this judgment the respondents have prosecuted the present appeal.

A careful reading and consideration of the act creating the personnel board demonstrates to our mind that there are but two questions of real moment to be determined. First, does the act deal with two subjects, county and municipal governments, in violation of section 45 of the Constitution; and, second, Was it within legislative competence to abridge the right of local self-government of municipalities falling within the class designated by the act, to the extent and in the manner attempted in the act? As we see it, these are the only two questions presented by this appeal, which call for discussion here.

There can be no escape from the conclusion that the one dominating purpose and thought of the lawmakers, in adopting the act now before us, was to secure greater economy and a better and more efficient administration of the affairs of the counties and cities affected by the act.

It is to be noted that the civil service system provided by said act deals only with such appointees and servants whose compensation may be payable in whole or in part from the public funds, within the designated territory. The mere fact that some of the employees draw their compensation from the funds of the county, while others draw their pay from the cities, is a mere incident.

Through the whole act there is complete unity and singleness of purpose; economy and efficiency in the administration of the affairs of the counties and cities falling within the provisions of the act.

It is insisted that, because the act deals both with county and city government, it contains two subjects, incongruous and unrelated, and therefore offends section 45 of the Constitution; that a county is a quasi municipal corporation created solely as an arm of the state, to enable it to better administer its governmental affairs; that it is founded not upon the will or consent, necessarily, of the people of the territory out of which it is formed, but that it is created by the sovereign power of the state in accordance with the sovereign will, without the particular solicitation, consent, or concurrence of the inhabitants of the territory thus set apart; that a municipality is a legal entity, endowed by law with certain rights and powers, including the right of local self-government.

It is because of this supposed distinction between a county and municipality, it is insisted that the Legislature cannot in the same act deal with both; that, to do so, would render the act offensive to section 45, Constitution, as containing more than one subject, and therefore void.

It is clear, however, that counties and cities are political subdivisions of the state, each created by the sovereign power of the state, in accordance with the sovereign will, and each exercising such power, and only such power, as is conferred upon it by law. Each is a creature of the statute, and the same power which can create, can abolish.

What was said by this court in State ex rel. Wilkinson v. Lane, 181 Ala. 646, 62 So. 31, 34, is in line with the current of authority elsewhere, and is as follows: "Every power which is possessed by a municipality is a power which is delegated to it by the state, and every power which it possesses can, unless there is some constitutional inhibition to the contrary, be taken from it by the state." There the right of the Legislature to provide for appointment by the Governor of a commissioner of the city of Birmingham was recognized, and the only real contested question related to section 150 of the Constitution, due to the office (judicial) held by the newly appointed commissioner, Judge Lane.

This statement of the law by this court in the Lane Case, supra, finds direct and full support in the following statement of the rule found in 43 Corpus Juris, p. 76, § 15: "A municipal corporation can have no other source than the sovereign power; its creation is an attribute of sovereignty. It is a political creature, and the creature cannot be greater than its creator. Certain sovereign powers, such as legislative power, and the power of eminent domain, are conferred on a municipal corporation, and nothing less than sovereign power can confer the supreme faculties upon any creature; nor can he who has no sovereign power confer any."

It is thus obvious that in the appointment and selection of appointees, agents, and officers in certain counties, and cities within such counties, and who may be paid out of the public funds of such counties and cities, the Legislature was dealing with but one subject, and that subject related to the administration of public affairs intrusted to its creatures, and over which it held the power to impose its sovereign will, in short, over which it had the power of life and death. In speaking to the said counties and cities through the act in question it spoke but one voice, and for one purpose; economy and efficiency in the administration of the affairs of the political entities which it had created.

This being true, can it be said that the act impinges upon section 45 of the Constitution? We think not.

In the case of State ex rel. Ward v. Henry, 224 Ala. 224, 139 So. 278, 281, Mr. Justice Gardner, in speaking for the court, made the following clear and concise statement of the rule on the question now before us, which is determinative, in our opinion, that the act does not offend section 45 of the Constitution: "It is settled under our decisions that however numerous the subjects stated in the title, and however numerous the provisions in the body of the act may be, if they can be by fair intendment considered as falling within the subject-matter legislated upon in the act, or necessary as ends and means to the attainment of such subject, the act does not offend our constitutional provision that no law shall embrace more than one subject, which must be expressed in its title. Allman v. City of Mobile, 162 Ala. 226, 50 So. 238; Ballentyne v. Wickersham, 75 Ala. 533, 534; Board of Revenue v. Hewitt, 206 Ala. 405, 90 So. 781; State ex rel. Leslie v. Bracken, 154 Ala. 151, 45 So. 841."

A statute has but one subject, no matter how many different matters it relates to, if they are all cognate, and but different branches of the same subject. Kelley v. Mayberry Township, 154 Pa. 440, 26 A. 595. It is to be noted that Pennsylvania has a constitutional provision similar to our section 45.

We are, therefore, at the conclusion that the contention that the act offends section 45 of the Constitution cannot be sustained.

This brings us to a consideration of the second question noted above, viz., Was it within legislative competence to abridge the right of local self-government of municipalities falling within the class designated by the act, to the extent and in the manner attempted in the act?

In the case of Mayor and Council of Americus v. Perry, 114 Ga. 871, 40 S.E. 1004, 1007, 57 L.R.A. 230, the Supreme Court of Georgia had occasion to consider the question of the right of the Legislature of Georgia to deal with the matter of the appointment of the officers of a municipality in that state and that court,...