Acuff v. Weaver , 17 Ala. App. 532 ( 1920 )

The general act approved September 18, 1915, provides:

"1. That all the fees allowed in the county court by sections 6655 and 6656 of the Code, or any other provisions of law, be and the same are hereby required to be paid into the county treasury as collected.

"2. That there shall be paid out of the county treasury to the judge of the county court an annual salary in equal monthly installments of three hundred dollars in counties having less than twenty-five thousand population and in counties having twenty-five thousand population and less than thirty-five thousand population four hundred and fifty dollars and in counties having more than thirty-five thousand population six hundred dollars which shall be in lieu of all fees or compensation allowed by law to such county court or judge for services rendered in and about such county court; the payment of such salary to be by warrant of such judge drawn on the treasury of the county. The population to be determined by the last federal census preceding the time of the payment of fees.

"3. That this act shall become effective on Monday after the second Tuesday in January, 1917."

Acts 1915, p. 603.

The local act approved September 2, 1919, applicable to Shelby county only, provides:

"1. That all fees allowed in the county court of Shelby county, Ala., under and by virtue of sections 6655 and 6656 of the Code of Alabama, or any other provisions of law, be and the same are hereby required to be paid into the county treasury of Shelby county, Ala., as collected.

"2. That there shall be paid out of the county treasury of Shelby county, Ala., to the judge of the county court of Shelby county, Ala., an annual salary of $1,200.00 in equal monthly installments, which shall be in lieu of all fees or compensation allowed by law to such judge of said court for services rendered in and about such court; the payment of such salary to be by warrant of said judge drawn on the treasury of said county, and such warrants shall be a preferred claim against the treasury of said county.

"3. That all laws and parts of laws in conflict with the provisions of this act be and the same are hereby repealed."

Loc. Acts 1919, pp. 93, 94.

What was said in Montgomery City v. Reese, 149 Ala. 190,43 So. 116, is applicable here:

"Section 105, art. 4, of the Constitution, provides that 'no special, private or local law except a law fixing the term for holding courts, shall be enacted in any case which is provided for by general law, * * * and the courts, and not the Legislature, shall judge as to whether the matter of said law is provided for by a general law. * * * Nor shall the legislature indirectly enact any such special, private or local law by the partial repeal of the general law.' It is apparent that the subject-matter of the two acts is substantially the same; and it is equally apparent that the inhibition contained in the section of the Constitution quoted was violated by the enactment of the special or local law."

See, also, Norwood v. Goldsmith, Treas., et al., 168 Ala. 224,53 So. 84.

The question propounded by the Court of. Appeals must therefore be given an affirmtive answer. The local act is unconstitutional.

ANDERSON, C.J., and McCLELLAN, SAYRE, SOMERVILLE, GARDNER, and THOMAS, JJ., concur.

Opinion of Court of Appeals.