Tucker v. State Ex Rel. Poole ( 1935 )

On Rehearing. The substance of our holding in the foregoing opinion is that notice of an intention to apply to the Legislature for the passage of an act, published in full in the newspaper, does affirmatively appear, if necessarily inferred, viewed from any reasonable standpoint, though in such notice not stated in so many words; that section 106 of the Constitution does not require such notice to so directly state and, therefore, there appears no violation of its letter; and that the act thus published in full under the heading "Notice," viewed from the standpoint of common sense and sound reasoning, forestalls any deception of those interested and immediately affected thereby, thus giving full effect to the purpose of the framers of the Constitution, and meeting the substantial requirements of this constitutional provision.

We have re-examined the question in the light of the able argument for appellants and the authorities noted. But the matters now pressed for consideration were duly weighed upon original consideration of the cause. Counsel have forcibly presented the opposing view, but after due deliberation we are not persuaded that the opinion delivered is laid in error. No good purpose would be subserved by a rediscussion of the argued questions, and we therefore rest content with what has been said as expressive of our views.

In the court below other constitutional questions were duly raised, though not argued here upon original submission, and appellants press upon our attention two other constitutional objections, which will be briefly considered, conceding (without deciding) that under the authority of Dunn v. Dean,196 Ala. 486, 71 So. 709, and State ex rel. Knox v. Dillard,196 Ala. 539, 72 So. 56, appellants are within their legal rights.

The first insistence relates to section 256 of the Constitution, the argument being that the act here in question is violative thereof in that it destroys uniformity as to the system of common schools in the state. Among the cited authorities is Ellis v. Greaves, 82 Miss. 36, 34 So. 81. But there the court was considering a provision of the Mississippi Constitution, which required as to the public schools "a uniform system"; unlike that of our Constitution (section 256), which provides only for the maintenance of "a liberal system of public schools throughout the state."

True our court has interpreted this provision as meaning such a system as would "operate upon, and in favor of, all the children equally, without special local privileges to any" (Elsberry v. Seay, 83 Ala. 614, 3 So. 804, 807; Schultes v. Eberly, 82 Ala. 242, 2 So. 345, cited in In re Opinions of the Justices, 229 Ala. 98, 155 So. 699); yet this is far from saying there must be a uniformity of laws throughout the state with a denial of local legislation to conform to local needs. The lawmaking body has not so interpreted this provision, as evidenced by numerous local laws changing the method of selection of county superintendent of education. Many laws have been passed changing this selection to an election by the people, and in some also adding certain qualifications for the office. Illustrative is a recent local act here attacked. State v. Black, 224 Ala. 200, 130 So. 431; Local Laws 1931, p. 5. Similar laws abound. But we do not consider further discussion necessary.

The act does not offend section 256 for the reason that uniformity is not therein required. Nor do we understand that a consideration of section 270 adds weight to such insistence, as this is merely a provision designed especially to exempt the county of Mobile that it may continue with its own separate and distinct school system.

The remaining insistence is that the act is violative of section 175 of the Constitution, which prescribes the method of removal from office. It may be conceded that as members of the school board with a fixed term these respondents come within the protective influence of this provision of our Constitution. Owens v. City Council of Troy, 229 Ala. 439, 157 So. 865; Springer v. State ex rel. Williams, 229 Ala. 339, 157 So. 219; Petree v. McMurray, 210 Ala. 639, 98 So. 782; Nolen v. State ex rel. Moore, 118 Ala. 154, 24 So. 251; Williams v. Schwarz,197 Ala. 40, 72 So. 330, Ann.Cas. 1918D, 869.

But that is not the act here in question, as this act abolished the office of the county board of education, and establishes in lieu thereof a county school commission, with the same powers as the old board, but with new duties and powers, material and significant. This the Legislature had the right to do.

In Hawkins v. Roberts Son, 122 Ala. 130, 27 So. 327, 332, speaking of the act abolishing the office of county commission, and creating that of the board of revenue, the court observed: "The appellants accepted their offices, with the knowledge that they were statutory, and like all such offices were within the uncontrolled discretion of the legislature as to their continuance."

Like observations are applicable here, and we consider this authority suffices to dispose of this contention without further discussion.

Upon due consideration, therefore, it appears that appellants fell into no error in selecting in the first instance their contention that the provisions of section 106 of the Constitution presented the most material and vital point in the case. We so consider it, but we yet feel that the original opinion correctly dealt with that contention.

It results, therefore, that the application for rehearing will be denied.

Application overruled.

BOULDIN, FOSTER, and KNIGHT, JJ., concur.