Carnley v. Brunson ( 1933 )

In my judgment there was a failure of compliance with section 106 of the Constitution in the passage of the act creating the "Inferior Court of Coffee County." Local Acts 1931, pp. 182-192.

The notice, which is in the language following, was wholly insufficient to advise the public affected of the substance of the proposed law: "Notice is hereby given that a bill will be introduced at the present session of the Legislature of the State of Alabama to establish in and for Coffee County, Alabama, a court to be called the Inferior Court of Coffee County; to prescribe the powers and jurisdiction of said court, to provide for its officers, their powers, duties and compensation, and time of holding said court; to prescribe the rules of procedure in said court; to provide for the transfer of all misdemeanors now on the Circuit Court Docket in said County to the said court, and for the transfer to the said court of all misdemeanor cases which may hereafter be returned by indictment into the Circuit Court; and to provide for the transfer by agreement of parties of all civil suits now pending on said Circuit Court Docket where the amount involved does not exceed the jurisdiction of said court; and to provide terms and sessions thereof to be held in both Enterprise Division and Elba Division of the said County."

There is nothing in this notice to indicate the nature and extent of the court's jurisdiction, what offices are to be created, what salary or compensation the officers shall receive, and how the same shall be paid, whether by the state or the county, or the litigants. Nor does it indicate how the officers of said court shall be chosen, whether by the people, the Governor, or some other authority. It does not show whether trials in said court shall be by the judge without a jury or by jury.

The act consists of twenty-five sections, covering nine pages of the printed act, and contains approximately four thousand words, while the notice contains one hundred and seventy-three words, and the title itself contains two hundred and thirty-three words.

There is more information in the title of the act as to its substance than in the notice, and the only way any one interested in or opposed to its passage could get a fair idea of its scope and effect would be to obtain a copy, or inspect the original bill. The Constitution contemplates that the notice must inform the people interested in the legislation of the "substance" of the bill, and not that they shall have to resort to other sources for information. Commissioner's Court of Winston County v. State ex rel. County Highway Commission,224 Ala. 247, 139 So. 356.

The authorities generally are agreed that the notice of the proposed law need not state details, and if the substance ofthe proposed law is given, the Legislature is left to work out the details, and amendments relating thereto are permissible,but there can be no material departure from the substance ofthe proposed law as stated in the notice, and if there is such departure the enactment is void. Commissioners' Court of Winston County v. State ex rel. County Highway Commission, supra; State ex rel. Wilkinson v. Allen, 219 Ala. 590,123 So. 36; First Nat. Bank of Eutaw v. Smith, 217 Ala. 482,117 So. 38.

Yet, to hold that the notice may be so general and indefinite as to give no more information than is contained in the title, or less, as in the instant case, defeats the purpose of the Constitution. Who will deny that the matter of salaries to be paid the officers of the court is not a matter of substance? So, with the jurisdiction of the court and its extent — matters relating to the necessity of such legislation and the burden to be imposed on the taxpayer.

The facts in this case illustrate the proposition. The bill as introduced in the Senate as Senate Bill No. 171, and the bill as introduced in the House as House Bill 279, proposed to create an "Inferior Court Fund" arising from fines and forfeitures in said court, and out of this and the fees allowed by law, "and no other" all of the officers of the court were to be paid. The bill as introduced and passed in the Senate, provided that one half of the salary of the judge should be paid from such fund and the other half out of the general funds of the county. The bill as amended and passed in the House provided that the entire salary of the judge should be paid out of the general fund.

If the notice had stated the substance of these bills as introduced, that is, that the officers should be paid out of the special fund created by the act "and no other," no one would deny that the bills as passed departed in material substance from the notice, and were in violation of the Constitution. Is it logical, therefore, because the notice gives no information other than an act to create a court to be known as the "Inferior Court of Coffee County," to say such notice is sufficient?

Unless this court proposes to establish one construction of the Constitution in respect to acts creating courts, and another for all other acts, the act involved here should be condemned, in obedience to the mandate of section 106 of the Constitution that "the courts shall pronounce void every special, private, or local law which the journals do not affirmatively show was passed in accordance with the provisions of this section."

I am further of opinion that the notice became functus officio when Senate Bill No. 171, introduced thereunder, passed through the legislative mill, and came to its death by the failure of the Legislature to pass it over the veto of the Governor.

It is familiar legislative practice, of which the court takes judicial notice, to introduce the same bill in each House on the same day, for the sole purpose of meeting the requirements of sections 62 and 63 of the Constitution, the first of which provides that "no bill shall become a law until it shall have been referred to a standing committee of each house, acted upon by such committee in session, and returned therefrom, which facts shall affirmatively appear upon the journal of each house," and the other, that "every bill shall be read on three different days in each house," etc. This practice does not contemplate that both of said bills shall be passed through both Houses and become laws, thus producing duplication in statutes, but the common and approved practice is that the bill, of the House or the Senate, which passes the body in which it was offered and is reported to and delivered to the other, that the other body refers the bill to an appropriate committee who reports it for action by that body, and the customary practice is to report it as passed or substitute one of such bills for the other, and put it on its final passage. The sole purpose of this legislative practice is to save time in putting that bill through the legislative mill, either to its successful enactment or its defeat. When this end was reached, the people affected, with the knowledge of this legislative practice and in the light of the notice that "abill" would be introduced, had the right to rest on the result of this legislative judgment, and assume that nothing further would be done in respect to such legislation without further notice, published as required by the Constitution. See "Response of the Supreme Court" in Hudgens v. State, 15 Ala. App. 157, 72 So. 605, 606.

To hold that this notice, published for the information of the public to be affected, retained its vitality until some bill was successfully passed, is to convert the provisions of the Constitution into a trap through which the unwary public may be lulled into inactivity, and defeat the very purpose of said section 106 of the Constitution.

In the light of this legislative practice, when the House of Representatives accepted and passed Senate Bill No. 171, it must be held to have abandoned House Bill No. 279.

The integrity of section 106 of the Constitution, by its very language, was committed by the Constitution makers who proposed it, and the people who adopted it, to the keeping of "the Courts," and the approval by the majority opinion of the legislative practice followed in respect to the enactment of the local law involved, opens the gates to the "Trojan Horse" with its cargo of destruction, through which, what was intended as safeguards is converted into a trap to mislead and ensnare.

I therefore respectfully dissent.

BOULDIN, J., concurs in the foregoing dissenting opinion in so far as it relates to the sufficiency of the notice.