State v. Rogers , 107 Ala. 444 ( 1894 )

BRICKELL, C. J.

This was an information in the nature of a qno warranto, and its real purpose is to test the legality of the present organization of the board of e/jn ue for the county of Lowndes. The board is organized in conformity to the provisions of an Act of the last General Assembly, entitled “An Act to establish a board of revenue for Lowndes county ands define the powers and duties of said board of revenue.” (Pam. Acts, 1-894-5, p. 186.1 The first section declares the board of revenue for the county shall be so changed as to consist of five members, to lie elected at the biennial election for state and county officers, and relieves the judge of probate from all official connection with the board. The second section declares the board as changed, shall have and continue in the exercise of all the powers and duties now conferred or thereafter conferred on them by law, and that the board ‘ £is in no wise changed from what it is now, except as herein provided.” The third section declares that the four members of the board elected at the preceding August election, shall remain members, and that O. P. Rogers, Jr., shall constitute the fifth member. The term of office and compensation is fixed, and vacancies are to be filled by the appointment of the governor. The fourth section requires the board as changed to hold its first meeting on the 22nd day of December, 1894, at the office of the circuit clerk of the county, and fixes that as their general place of meeting. At such meeting, a chairman of the board was to be elected, holding office during the term of the board; vacancies in the chairmanship to be filled by the board. The fifth section declares the clerk of the circuit court of the county,' clerk of the board and prescribes his duties and compensation. The sixth section requires the sessions of the board to be held at the time appointed by the existing law; and makes provision for extraordinary meetings. The seventh section declares that claims against the county may be passed on or contracts for the payment of money entered into, only at the regular meetings ; and at least three members must concur in che allowance of a claim, or the making of a contract. If there be division, the clerk is required as part of the proceedings of the board to record the vote, and the last clause is : “Nor shall any claim be passed on, or any contract awarded, save when the said board and their clerk are in private.” The eighth section relates to the issue of warrants for the payment of claims, the payment of jury certificates, and other matters not now of importance.

The primary insistence is, that the whole act is unconstitutional and void, because offensive to the clause of the second section of the Fourth Article of the Constitution, which, with exceptions, it is not necessary to enumerate, requires that “each law shall contain but one subject, which shall be clearly expressed in its title. ” The unity of the subject of the Act, is not, and could not be doubted. The insistence is, that the title does not fairly indicate or express it — that it expresses the purpose to originate or create a board of revenue, while there is no more than a reconstruction or reformation of the existing board ; and that of consequence , the title is deceptive and misleading. The history and purposes of this constitutional mandate, are so well known and understood ; the principles of interpretation which control in determining its application and operation, have been the subject of such repeated judicial consideration and decision, that there is no room or reason for further discussion or elucidation of them. In considering whether a legislative enactment is violative of this requirement, the courts proceed upon the presumption which obtains when considering whether any other limitation of the constitution has been violated; the presumption is, that the legislature has not exceeded its powers, and unless it be clear that there has been a substantial departure from the constitution, the validity of the ]egislative act must be supported.— People v. Briggs, 50 N. Y. 558.

Until 1861, in this State, following the common law, the title of an Act was not considered part of it; it did not control the words of the body of the Act however foreign or diverse to the title they may have been ; if in themselves, the words were ambiguous, of doubtful import, to aid in their construction, resort was had to the title. Bartlett v. Morris, 9 Port 266. The constitution of 1861, was the origin of constitutional requirements relating to the titles of statutes. The words of the requirement, were: “Each law shall embrace but one subject, which shall be described in its title;” and in this form it passed into the constitution of 1865. The phraseology was changed by the constitution of 1868, to the present form. The difference in phraseology has not caused any change or difference of construction ; each clause being deemed significant of the same purposes, and each having the same operation. — M. M. B. & L. Association v. Robinson, 69 Ala 413. In the first of our cases, interpreting or construing this constitutional requirement, (Ex parte Pollard, 40 Ala. 98) , it was said by A J. Walker, C. J. “The constitution requires that only one subject shall be embraced, and that it should be described in the title. Subject is a very indefinite word.- A phrase may state the subject in a very general or indefinite manner, or with minute particularity. The subject of laws with such titles as the following, ‘To adopt a penal code,’ ‘To adopt the common law of England in part,” ‘To adopt a code of laws,’ ‘To ratify the by-laws of a corporation,’ would be expressed in a very general way, and very little knowledge of the specific provisions of the laws could be gleaned from the title ; yet it would nevertheless be true that the subject was described in the title. * * * * * It is impossible to prescribe any standard of particularity for the legislature. The constitution has not attempted to do so. It exacts from the legislature an announcement in the title of the subject, but does not dictate any degree of particularity. This is a matter- left to legislative discretion. The object of the constitutional provision was to prevent deception by the inclusion in a bill of matter incongruous with the title. The evil contemplated was not the generality and comprehensiveness of titles. Those faults do not tend to mislead or deceive.” Again, ‘‘The question must always be, whether, taking from the title the subject, we can find anything in the Act which cannot be refemed to that subject. If we do, the law embraces a subject not described in the title. But this conclusion should never be attained, except by argument characterized by liberality of construction and freedom from all nice verbal criticism.” The illustrations employed by the learned chief justice, may, or' may not be, in all respects correct; but the principle asserted, that the constitutional requirement is not directed against the generality and comprehensiveness of titles ; that all its purposes are satisfied when the law has but one general object, which is fairly indicated in its title, underlies all our numerous decisions upon this question. Because of the generality and comprehensiveness of the title, if the general subject of the enactment is fairly indicated, sentence of nullity has not been pronounced. It is only when matter foreign to, or incongruous with the title has been introduced, that the title has been declared misleading and deceptive, and the enactment pronounced void. Nor is it necessary that che legislature adopt that which the courts may regard as the most appropriate or expressive title; the courts do not subject the titles to the rules of a nice verbal criticism, or often legislative action, as it has been properly said, would be frustrated, without fulfilling the intention of the framers of the constitution.

It may be conceded the title of the present act would be appropriate as the title of an act originating and creating a board of revenue. It is the title of the Act originating and creating the board of revenue for the county of Lowndes. (Pam. Acts, 1875-6, p. 383). But this does not involve the concession, that the title is so inappropriate as to offend the constitution, when it is employed as indicative of the subj ect of the reconstruction, reformation,or reconstitution of an existing board. The insistence hinges on the use of the word establish, which seems to be supposed incapable of proper use when employed in this connection, or of any other signification than to found and setup ; yet, it is as often employed, to signify the putting or fixing on a firm basis, of putting in a settled or an efficient state or condition, an existing legal organization or institution, as it is to found or set up such organization or institution ; the one meaning is. as little recondite, abstruse, or obscure as the other. In People v. Mahaney, 13 Mich. 481, whicb is regarded in all courts as a leading and controlling authority in the exposition and application of the constitutional requirement, the title of the act was, “An act to establish a police government for the city of Detroit.” It was said by Cooley, J. “The general purposes of this act is ‘to establish a police government for the city of Detroit.’ It would be difficult to express it better or more concisely than it is expressed by the title. To accomplish this general object, officers are authorized to be appointed, who shall take upon themselves certain duties before performed by other officers, as well as certain new duties now created, and who are authorized to appoint and govern a force. The act, with great particularity, prescribes how this police government shall be rendered effectual; but this particularity cannot possibly be objectionable so long as it introduced nothing foreign and incongruous, but is confined to the means supposed to be important to the end indicated.” The argument in support of the insistence of the appellant, proposes to deflect judicial inquiry from its appointed sphere, the consideration whether the title of the present act fairly indicates the one subject to which the act is devoted, to the consideration whether a more appropriate and expressive title could not have been selected, and this involves nice criticism of the meaning of the word establish.. The discretion of the legislature in the selection of titles is to be invaded, and the - presumption in favor of the validity of legislative acts is to be foregone and repelled.

The next insistence is, that the act offends the clause ' of the same section and article of the constitution which provides that “no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only; but so much thereof as is revived, amended, extended, or conferred, shall be reenacted and published at length.” The act is in form original, and is in itself intelligible and complete. In some respects it modifies and changes the existing statutes from which the board of revenue of the county derived organization and existence. The more material of the changes is, relieving the judge of probate from official - connection with the board, devolving on a chairman of the selection of the board, and on the clerk of the circuit court,, the duties the judge had been required to perform. This ■clause of the constitution, like the preceding clause relating to titles has been the subject of frequent judicial construction. Its purposes and scope were explained by Cooley, J.,in People v. Mahaney, supra.: “Thisconstitutional provision must receive a reasonable construction, with a view to give it effect. The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effect, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws. An amendatory act which purported only to insert certain words, orto substitute one phrase for another in an act or section which was only referred to but uot re-published, was well calculated to mislead the careless as to its effect; and was, perhaps, sometimes drawn in that form for that express purpose. Endless confusion was thus introduced into the law, and the constitution wisely prohibited such legislation. But an act complete m itself is not within the mischief designed to be remedied by this provision, and cannot be held to be prohibited by it without violating its plain intent. ” In Ex parte Pollard, supra, it is said : “It was never intended by the constitution that every law which would affect some previous statute or variant provisions on the same subject should set out the statute or statutes so affected at full length. If this were so, it would be impossible to legislate. The constitutional provision reaches those cases where the act is strictly amendatory or revisory in its character. Its prohibition is directed against the practice of amending or revising laws by additions, or other alterations, which without the presence of the original act are usually unintelligible. If a law is in itself completo and intelligible, and original in form, it does not fall within the meaning and spirit of the constitution.” All the purposes of the present act could doubtless have been accomplished by an act strictly and in form amendatory — by setting out the existing statutes, amending and re-enacting them, but it is obvious the amendatory act would have been cumbersome, and not more intelligible than is the present act. Whether an amendatory act, or an original act should be employed, was matter of legislative judgment and discretion, which the courts cannot control. In People v. Banks, 67 N. Y. 575, it is said : ‘ ‘Itis not necessary, in order to avoid a conflict with this article of the constitution, to re-enact general laws whenever it is necessary to resort to them to carry into effect a special statute. Such cases are not within the letter or spirit of the constitution, or the mischief intended to be remedied. By such a reference the general statute is not incorporated into or made a part of the special statute. The right is given, the duty declared, or burden imposed by the special statute, but the enforcement of the right or duty, and the final imposition of the burden are directed to be' in the form and by the procedure given by the other and general laws of the State. Reference is made to such laws, not to affect or qualify the substance of the legislation or vary the terms of the act, but merely for the formal execution of the law. The evil in view in adopting this provision of the constitution was the incorporating into the acts of the legislature by reference to other statutes, of clauses and provisions of which the legislators might be ignorant, and which affecting public or private interests in a manner and to an extent not disclosed upon the face of the act, a bill might become a law, which would not receive the sanction of the legislature if fully understood. ’ ’

The remaining objection to the validity of the act, is directed to the last clause of the 7th section: “Nor shall any claim be passed on, or any contract awarded save when the said board and their cleric are in private.” The contention is, that this clause is offensive to the declaration of the bill of rights. “That all courts shall be open.” If the contention was colorable, it would perhaps be a duty to pass it with the observation, that it cannot be said the present record raises the question of the validity of the act in this respect, and until it was shown that the board had assembled in private, excluding from its presence some citizens having, or claiming the right to be present, the question could not arise. But the contention is not colorable, and to quiet the controversy, we have concluded to pass on it. In the making of contracts, and in the audit and allowance or rejection of claims, the board is not in the exercise of judicial power, nor sitting as a court. It is of peculiar constitution ; it has powers which are in their nature judicial; other powers which are in their nature legislative — other powers, the powers of most frequent exercise, which are purely administrative or executive. It is in the exercise of mere administrative power in the making of contracts and in the allowance or rejection of claims. — Board v. Barber, 53 Ala. 539; Clarke v. Jack, 60 Ala. 271; Jeffersonian Publishing Co. v. Hilliard, 105 Ala. 576. Then it bears a close resemblance to the board of aldermen of a municipal corporation, or of directors of private corporations. It would, in the absence of statute, rest in its discretion, whether in the making ' of contracts, and the audit of claims, its deliberations should be private or public. As the pecuniary interests of the citizens and of the county, are brought into antagonism, there may be often, manifest propriety, in their deliberating in private, free from all interference, and from all extraneous influences. The act it will bo observed, affords no opportunity for avoiding responsibility for official action. It is only at the regular terms of the board, that contracts may be made or claims allowed ; a majority must concur in the making of a contract or allowance of a claim. The making of a contract, or allowance of a claim, is matter which will appear of record. If there is division in the board, the clerk records the vote of each member. The records of the board are public records, at all suitable times open to the inspection of any citizen of the county. While the act compels the board to deliberate and act in private, it equally compels publicity of the result of the deliberations ; securing official responsibility to the constituency of the board.

For the reasons we have given, we are satisfied the act is constitutional, and that the board of revenue is legally constituted and organized. The result is, the judgment of the circuit court must be affirmed.