Jackson v. Sherrod , 207 Ala. 245 ( 1921 )

It is now insisted that the act of September 29, 1920, violates section 96 of the Constitution, and, in view of the public nature of the question, the probability of its recurrence in the absence of a present settlement, and the similarity of section 96 and subsection 24 of section 104, the court states its opinion as follows: Section 96 of the Constitution covers much the same, if not the identical, ground as subsection 24 of section 104. The first-named section prohibits local laws "regulating costs and charges of courts, or fees, commissions or allowances of public officers," and may embrace a somewhat larger subject-matter than the last named, which prohibits special, private or local laws "creating, increasing or decreasing fees, percentages or allowances of public officers." Both sections deal with fees of public officers, and that is the subject-matter of the act in question. This act — except in so far as it deals with fees in cases in which pleas of guilty are interposed, to be considered presently — neither regulates, creates, increases, nor decreases the fees of the deputy solicitor for Lawrence county; that is, it creates no new fee, nor changes the amount of any fee for any particular service rendered in any case, nor enlarges nor diminishes the class of cases in which any fee may be charged. It does not, therefore, within the purview of the Constitution, regulate solicitor's fees in the cases just now under consideration, though it does regulate the use the state makes of such fees after collection. These sections are for the protection of parties against whom costs, fees, commissions, allowances, or percentages are charged, and this protection, to the extent intended, is insured by the requirement of invariable uniformity throughout the state, and such regulation as the act provides, in cases in which no plea of guilty is interposed, does not fall within the evil of the constitutional safeguards here at issue.

However, as noted above, section 10 of the act of August 29, 1919, and the act of September 29, 1920, amending section 10 of the former act, alike provide:

"That in all cases where a plea of guilty is interposed by the defendant, no solicitor's fee shall be taxed or collected, in excess of the amount of the fine assessed."

This requirement of these acts does not permit an increase of the solicitor's fee in any case, but it would operate to decrease such fees in cases in which a plea of guilty is interposed, and so does open violence to the Constitution.

The question then recurs, How does the constitutional invalidity of this identical proviso in the two acts affect their bodies or the main provisions thereof? The appeal on behalf of these acts is to the rule stated in Harper v. State,109 Ala. 28, 33, 19 So. 857, and the cases there cited, viz.: Where a statute contains valid and invalid provisions, and the invalid parts can be stricken, leaving an enactment "complete within itself, sensible, capable of being executed and wholly independent of that which is rejected," the enactment will be upheld and enforced as to that part of it which is valid. Quite a number of such cases are cited to section 34, p. 1054, 11 Mich. Dig. Ala. Reps. The application of this doctrine is a matter for the court, the question depending upon the nature of the defect. Referring to the most serviceable statement of the doctrine to be found in our reports, we quote the language of Somerville, J., in Powell v. State, 69 Ala. 10:

"It does not matter that the objectionable and valid parts of the statute are in the same section of the act. If they are perfectly distinct and separable, and are not dependent the one on the other, the courts will permit the one part to stand, though the other may be expunged as unconstitutional, provided effect can thus be given to the legislative intent. But where the provisions are all connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the Legislature would have passed the one without the other, the constitutional invalidity of the one part will vitiate the other, and both must then fall together."

Obviously, the main purpose of section 10 of the act of August 29, 1919, was to enable the deputy solicitor to earn a compensation in excess of that permitted by section 5 of the act of September 25, 1915 (Acts, p. 817), not however, to exceed the sum of $1,200. In considering the effect of the invalid proviso upon the remainder of the section — and upon the act as a whole — we must assume that the Legislature contemplated an administration of the act according to established principles of law and propriety, that fines, within the limits prescribed by law, would be assessed according to the legal merits of each case, and not for the purpose of increasing the number of convictions or inducing pleas of guilty when otherwise such pleas would not be entered. So considered, the unconstitutional proviso appears to have been interpolated, as its text would indicate, for the relief of persons convicted of violations of law, not for the benefit of the solicitor. And so considered, we think it cannot be said that other provisions of the section and the act are so dependent upon the proviso in question that it must be presumed the Legislature would not have passed the former without the latter. Such being the case, the re-enactment of the section by the act of September 29, 1920, cannot be held unconstitutional on account of the objection just here under consideration, unless the elimination of the $1,200 maximum may be found to have that effect, for that is the only new feature of the section as amended. But here again no such relation of dependence between the proviso and the removal of the limit is perceived as that we must presume the Legislature would not have passed the one without the other.

It is here and now insisted that the two acts in question are invalid under section 281 of the Constitution. This objection, if properly presented for review, would raise a mixed question of law and fact. The section would prohibit an increase of appellee's compensation by the act of August 29, 1919, in the event only he was in office at the time and in the absence of the saving consideration to which we cited State ex rel. Brandon v. Prince, supra, in our original opinion in this cause. According to that decision there is no constitutional objection to the act last named above. As for the act of September 29, 1920, section 281 of the Constitution would prohibit the relief sought by appellee in the event only that he was at the time of earning the fee in question in office by an appointment coming over from a time prior to the passage of the act (Willett v. Weaver, 205 Ala. 268, 87 So. 601), and, further, that the fee in question would swell the aggregate of his compensation to a total in excess of the sum of $1,200. But the state did not raise this point in the trial court, nor has there ever been any insistence upon it in brief, and we are bound to presume that, on the facts, appellee was entitled to the fee.

Application overruled.