In Re Opinion of the Justices , 244 Ala. 384 ( 1943 )

Response to questions propounded by the Legislature.

Questions propounded by the Legislature of Alabama to the Justices of the Supreme Court under Code 1940, Title 13, § 34.

Questions answered.

House Joint Resolution No. 10 by Mr. Smyer

Be It Resolved By

The House of Representatives, the Senate concurring, that the Supreme Court of Alabama is hereby requested to render to the Senate and House an advisory opinion on the questions herewith addressed to the Supreme Court by them as follows:

To the Supreme Court of Alabama, Montgomery, Alabama.

Gentlemen:

There have been introduced into both Houses of the Legislature of Alabama certain bills seeking the amendment of different sections of Title 62 of the Code of Alabama of 1940. Each of the sections sought to be amended is applicable only to one county or one municipality designated by name, or to several counties or municipalities designated by name. In addition there are pending several measures for the amendment of certain sections of the Code outside Title 62 which are applicable to but one judicial circuit designated by number. None of the bills are with reference to the time of holding court and none violate the provisions of Section 104 of the Constitution.

Some of the bills seeking to amend sections of Title 62 of the Code or to amend a section dealing with a designated judicial circuit are accompanied with notice and proof to conform to section 106 of the Constitution. Others are not accompanied with notice and proof and are titled generally "A Bill To Be Entitled An Act To Amend Section ___ of Title ___, Code of Alabama of 1940."

The bills in question would be local laws within the definition of Section 110 of the Constitution, and for valid enactment would seem to require the notice and proof required under Section 106 of the Constitution but for the fact that they seek to amend a section of the general Code of Alabama of 1940.

The Senate and House of Representatives of Alabama request of the Supreme Court advice on the following questions:

One: Does passage of a bill to amend a section of Title 62 of the Code of Alabama of 1940 applicable to but one or more designated counties or municipalities violate the requirements of Section 106 of the Constitution of Alabama where the bill is introduced and passed without notice and proof as required?

Two: Does passage of a bill to amend a section of the Code applicable to but one Judicial Circuit which is designated by number in the Code Section (the amendment not being with reference to fixing the time for holding Court) violate the requirements of Section 106 of the Constitution of Alabama where the bill is introduced and passed without notice and proof?

To the Legislature of Alabama State Capitol Montgomery, Alabama.

Gentlemen:

We make reply to the following questions propounded under the statute by the Legislature to this court:

"One: Does passage of a bill to amend a section of Title 62 of the Code of Alabama of 1940 applicable to but one or more designated counties or municipalities violate the requirements of Section 106 of the Constitution of Alabama, where the bill is introduced and passed without notice and proof as required?

"Two: Does passage of a bill to amend a section of the Code applicable to but one Judicial Circuit which is designated by number in the Code Section (the amendment not being with reference to fixing the time for holding Court) violate the requirements of Section 106 of the Constitution of Alabama where the bill is introduced and passed without notice and proof?"

Whatever may have been the original status of many of the laws now Title 62 of the Code, whether local laws or general laws with local application, we are of the opinion the adoption of the Code by the legislature, designating all of the original acts as local laws, constitutes these laws as found in Title 62 local laws and subject to the requirements of the constitution as to subsequent amendment.

This court has held that several of the constitutional requirements touching the enactment of a law do not obtain as to the codification of public statutes under the Constitution, Art. 4, § 85. Gibson v. State, 214 Ala. 38, 43, 106 So. 231; Ex parte Thomas, 113 Ala. 1, 21 So. 369. That is, the incorporation of acts into the code and the adoption thereof by the legislature cures all defects in the same that may have intervened in original enactment. Bluthenthal Bickert v. Trager Co. et al., 131 Ala. 639, 31 So. 622; State ex rel. Sossaman v. Stone, 235 Ala. 233, 178 So. 18; State v. Stone,236 Ala. 82, 181 So. 281; Dillon v. Hamilton, 230 Ala. 310,313, 106 So. 708; State ex rel. Hyland v. Baumhauer, Ala.App.,12 So. 2d 340; Brandon v. State, 233 Ala. 1, 4, 173 So. 238.

These local laws appearing in Title 62 of the Code may be amended by the Legislature as any other local law and the provisions of the Constitution as to notice and proof must be observed. State ex rel. Farmer v. Haas, 240 Ala. 30, 32,196 So. 873.

It would result from the foregoing that the answer to question One is in the affirmative, the amendment having relation to a local law.

In response to your second inquiry we wish to say that there have been decisions of this court holding that under certain circumstances an act of the legislature pertaining to a judicial circuit of the state is a general law. State ex rel. Montgomery v. Merrill, 218 Ala. 149, 117 So. 473.

We have also held that acts creating a judicial circuit in this state are local and are subject to the requirements of Section 106 of the Constitution. State ex rel. Attorney General v. Sayre, 142 Ala. 641, 39 So. 240, 4 Ann.Cas. 656; Walker v. State, 142 Ala. 7, 39 So. 242.

We are not, therefore, in position to give you an answer to your second inquiry for the reason that the proposed bill is not so specified as that we are able to tell under our decisions whether it would be a local law or a general law.

Dated this June 1st, 1943.

LUCIEN D. GARDNER Chief Justice.

WILLIAM H. THOMAS Associate Justice.

VIRGIL BOULDIN Associate Justice.

JOEL B. BROWN Associate Justice.

ARTHUR B. FOSTER Associate Justice.

J. ED. LIVINGSTON Associate Justice.

THOMAS S. LAWSON Associate Justice.