State ex rel. Gamble v. Hubbard , 148 Ala. 391 ( 1906 )

TYSON, J.

— Under the act “to establish a charter for the city of Troy in Pike county” (Acts 1869-70, p. 123), all the powers and jurisdiction of a justice of the peace in civil and criminal cases, within the corporate limits, were conferred on the mayor; and “exclusive original jurisdiction to hear, adjudge and determine all suits, prosecutions or other proceedings for the violation of the charter, bv-laws or ’ ordinances ’ of the corporation. Jurisdiction ivas also conferred upon him of “all proceedings by motion, scire facias, or other suits on any penal bonds payable to the mayor, taken under the act or ordinances of said corporation, including proceedings and suits of the officers of the corporation and the sureties on their official bond,' for the nonpayment of taxes or other moneys collected or íeceived, or for other delinquencies or defaults in office.” — Acts 1869-70, p. 127, § 12. By the act establishing an inferior court of criminal and quasi criminal jurisdiction, to be known as the “recorder’s court,” and providing a judge therefor, approved March 4, 1901, exclusive jurisdiction is conferred upon that court “of all offenses against the by-laws and ordinances passed and ordained by the mayor and councilmen of Troy, within the territory-embr'aced within the police jurisdiction of said city, and of all misdemeanors, concurrently with the criminal court of Pike county, committed within said territory embraced within said police jurisdiction, except violations of the revenue laws of the state, adultery, concealed weapons, assault and battery when a stick or other weapon is used and larceny and kindred offenses when the value of the property exceeds ten dollars;” also to examine all persons charged with felonies and to commit the same to jail, admit them to bail or discharge them as the law and evidence in the case may require. The other provisions of the act, comprising 16 sections, simply provide the machinery for carrying out and effectuating the exercise of the powers or jurisdiction conferred upon the court, not necessary to be here set out.— Acts 1900-01, p. 2323.

It will he observed that no reference whatever is made in. this act to the charter act. It does not assume in terms to revise, alter, or amend that act, or any section of it. The act itself is complete, and its meaning and scope plain and apparent. While its effect was to alter or change to a certain extent an existing power conferred on the mayor, that effect was produced by the later act, repealing pro tanto, by implication, the section of the charter act which conferred it, and not by anything on its face evincing that it was of an amendatory character. In other words, it is an independent act of legislation, and repeals by necessary implication because inconsistent with that provision of the chai ter act conferring jurisdiction on the mayor. To this extent, and only to this extent, did it change or alter that act. A repeal is one thing, and an amendment is quite another and different thing. A repeal of a statute involves necessarily a change in the law; and this is true, whether it be the only statutory enactment on the subject dealt with in the repealed act. Would any one contend that a statute in derogation of the common law was an amendment of it, simply because it altered or changed it? We think not.. If not, it cannot be asserted with ■any show of logic that because an independent act, full and complete within itself; repeals by implication any portion of a statutory system, it is amendatory of the remaining statutes of that system, to which no reference is made. It is undoubtedly true that such an act alters or changes the system; but this change or alteration is and must be ascribed to the repeal wrought by the independent act, and not to the change or alteration consequent- upon the repeal. So, also, an amendment involves some change or alteration in the existing statute law, and may also operate as a repeal of some of its provisions; but such change or alteration made by the amendment is direct and not consequential, as is the case of a repeal, and therefore the difference between the two is plain. There is also another marked difference. An amendment may not, and often does not, operate as a repeal, but merely as an addition to the statute of which it is amendatory. This can never be the effect or operation of a repealing statute, whether the repeal be by implication or be direct. A repeal is properly defined to be “the abrogation or destruction of a law by a legislative act.” Amendment in legislation is “an alteration or change of something proposed in a bill or established as law. — Bouv. Dictionary.

The jurisdiction to try offenses against ordinances of the municipality, civil cases, -and offenders violating the criminal laws of the state, conferred upon some municipal officer, is not necessary to the -act of incorporation. An independent act, conferring jurisdiction of offenses against city ordinances and of offenses against- the criminal laws of the state upon any other judicial tribunal, would not offend the Constitution or charter act creating and conferring corporate powers .upon the municipality; and where such a tribunal was established, as here, by an independent act, the corporate powers granted the municipality were neither enlarged nor diminished by it. It is true the jurisdiction of the mayor of the municipality was diminished because his right to try certain offenses was taken away; but we apprehend this did not affect the corporate powers- of the municipality. His right to> exclusive jurisdiction as a court was not derived from the corporation, nor as mayor was he virtute offici possessed with such a right. This being-true, the repeal effected by the act creating the inferior court, known as the “recorder’s court,” in no proper sense amended the charter of the corporation. That act was not and did not become in part the charter power of the municipality. To repeat, it simply repealed by implication certain powers conferred upon an officer of the municipality—the mayor.

These views are in full accord with, and are supported and sustained by, all the decisions of this court except the case of Little v. Huey, 137 Ala. 659, 35 South. 134, from which the writer dissented. In Ex parte Pollard, 40 Ala. 77, the question was presented whether an independent act, which repealed by implication certain other statutes, was an amendment of those statutes ' within the meaning of the constitutional prohibition that “no law or any section of any law, shall be revised or amended by reference to its title and number; but the law or statute revised or amended shall be set forth at full length.” The court held that it was not. It was then said: “The law is not void because it amends or revises other laws. It only repeals laws contravening its provisions. Its effect is analogous to repeal by implication. It was never intended by the Constitution that every law which would affect some previous statute of variant provisions on the same subject should set out the statute or statutes so affected at full length. * * * The constitutional provision reaches those cases where the act is strictly amendatory or revisory in its character.” In City Council of Montgomery v. Birdsong, 126 Ala. 647, 28 South. 522, it was said: “Nor does the enactment offend that other provision of said "section of the state Constitution, touching the revision, amendment, and extension of laws. That provision has been repeatedly held to apply to statutes strictly amendatory, and not to such as are independent and complete Avithin themselves, although they adopt by reference merely the provisions of other statutes on the same subject, there appearing in more enlarged and extended form.” See, also, Sisk v. Cargile, 138 Ala. 164, 35. South. 114; Thomas v. State, 124 Ala. 54, 27. South. 315; Cobb v. ■ Vary, 120 Ala. 263, 24 South. 442; Bates v. State, 118 Ala. 102, 24 South. 448; B. U. Tty. Co. v. Elyton Land Go., 114 Ala. 70, 21 South. 31b; Ex parte Thomas, 113 Ala. 1, 6, -21 South. 369; State ex rel. v. Rogers, 107 Ala. 444, 19 South. 909, 32 L. R. A. 520; Candy v. State, 86 Ala. 20, 5 South. 420; Falconer v. Robinson, 46 Ala. 340, 348; Locckhart v. City of Troy, 48 Ala. 579. In the last case cited (Lockhart v. City of Troy) it was held that a supplemental act ivas not an amendment within the constitutional prohibition. It is then said: “A supplemental act merely adds something that was left out of the original act. It does not necessarily revise it or amend it in the more technical sense. An amendment is what may be incorporated into the original on its passage. A supplemental act is an independent law, and a healing act is one that cures some defect in a proceeding whicli the Legislature could have authorized in the first instance.” Other quotations might be indulged to the same effect, but these will suffice to show that this court is unqualifiedly committed to the proposition that an independent legislative act, complete within itself, inconsistent with other statutory provisions on the same subject, is not an amendment, but a repeal. This being the settled interpretation of the constitutional provision, the incorporation of the same language in the present Constitution must be regarded as an adoption of that interpretation.—Alford v. Hicks, 142 Ala. 355, 38 South. 752; White v. State, 134 Ala. 197, 32 South. 320.

It is also a well-settled rule of construction that a word or phrase repeated in a statute or Constitution will bear the same meaning throughout the statute or Constitution unless a different intention appears.—2 Lewis’ Sutherland, Stat. Cons. § 399. Has the word “amending,” used in subdivision 18 of section 104 of the present Constitution, a different signification from the word “amended,” as used in section 45 of the same instrument, and, indeed, in the same article of the same instrument? The language of the latter section is: “No law shall be revised, amended or the provision thereof extended or conferred by reference to the title only.” The language of the former is: “The Legislature shall not pass a spcial, private or local law in any of the following cases: * * * Amending, conferring or extending the charter of any private or municipal corporation,” etc. Both are prohibitions against legislative action with respect of laws which could be exercised if they did not obtain. There, is clearly nothing in the language of the latter to indicate that the framers of the Constitution in: tended that the word “amending” should be interpreted differently from the word “amended” in the former. This being true, .must it not be presumed that it was advisedly and intentionally used with reference to the well-settled construction which this court had placed upon the same word in section 45? We think the answer must necessarily be in the affirmative. Any other' conclusion would violate every well-known rule of statutory construction and impute to the Constitution makers a want of. knowledge of the decisions of this court, and of all the courts of other jurisdictions where a similar constitutional provision obtains.

Having shown that the recorder’s court act was not an amendment of the charter act, within, the meaning of the constitutional prohibition against amending municipal charters by local laws, it necessarily follows that the act repealing the recorder’s court act, approved October 6th, 1903 (Loc. Acts 1903, p. 512), after the adoption of the present Constitution, is not offensive to that provision. It is true this act is a local one, but no objection is taken to its constitutionality upon any other ground than that it is violative of subsection 18 of section 104. And this contention of necessity proceeds upon the theory that it repeals an amendatory act-the recorder’s court act- -of the charter of the city of Troy,, and in that way amends the charter, by taking from it that which the recorder’s court act added to it. The case of Little v. State ex rel. Huey, supra, is directly opposed to the principles we have declared, and -must be overruled.

The judgment appealed from will be reversed, and one Avill be here rendered excluding the respondent from the illegal exercise of the functions and powers formerly conferred by the recorder’s court act.

Reversed and rendered.

Weakley, O. J., and Dowdell, Simpson, and Andek-son, JJ., concur.