Pillans v. Hancock , 203 Ala. 570 ( 1919 )

This is a proceeding by the appellees to oust the appellants from the governing board of the city of Mobile, and to declare the said appellees entitled to the offices under and by virtue of an election pursuant to an act of the Legislature of 1919, approved September 20, 1919 (Acts 1919, p. 487), providing for a change of the existing government, and abolishing the offices held by the appellants and creating the offices to which the appellees were elected. The answer does not controvert the legality or regularity of the appellees' title to the said offices or the abolishment of the old offices if the said act was a valid enactment, but contends that said act is unconstitutional. So the result of this case must depend upon the constitutionality vel non of the act in question.

Whether we treat the title to the act in question (which said title will be set out by the reporter) as indicating an amendatory act, or strike as surplusage so much thereof as purports to amend the existing acts referred to, we still have a title purporting a continuation of the commission form of government rather than the creation of the aldermanic form, though what we here say about striking the amendatory feature of the title is a mere concession for the immediate purpose of discussing the first proposition hereafter treated, as we will demonstrate later on that said portion of the title cannot be stricken. The title without change expresses the purpose of amending the acts of 1911 (Acts 1911, p. 330) and 1915 (Acts 1915, p. 869), and substituting therefor the amendatory act in question, dealing only with cities of not less than 50,500 or exceeding 100,000 inhabitants, and only such amendments thereto would be permissible as may be germane or cognate to the title of the acts so amended. The acts so amended deal with the commission form of government, as distinguished from the aldermanic form, and any amendment under their title would be permissible which related to or regulated such government without changing the form thereof; but an act making a distinct or radical change from what is generally known and accepted as the commission form would introduce a new and distinct subject and one different from the one dealt with in the title. On the other hand, if permitted to expunge the amendatory feature of the title of the present act, and by the inversion of sentences and transposition of words, we would perhaps have a title prescribing generally a form of municipal government for cities of not less than 50,500 and not exceeding 100,000, by providing for the selection of "a mayor and commissioners," by creating certain offices and providing for the selection of the incumbents, etc.

While such a title has a provision of generality, yet it is restricted by the quo modo as to who shall constitute the governing board, to wit, "a mayor and commissioners," thereby meaning commissioners conformable to those generally designated and provided for in the commission form of government statutes, to wit, commissioners appointed or selected from the city at large, or when elected to be chosen by the voters of the city at large, and who shall exercise co-ordinate authority and power with each other and with the mayor or president of the board as to the executive and legislative functions, and as distinguished from aldermen who are selected from their respective wards by the voters of said ward, though sometimes elected by the voters at large, who usually compose a larger number and who exercise the legislative functions to the exclusion of the mayor, except as to the veto power. Therefore the title indicates a continuation of the commission form of government; so the question is: Does the body of the act conform to the title, or does it provide an aldermanic, or some other form, different from the commission form? The commission form of government seems to be generally understood as composed of a board of a few persons, usually not exceeding five, with equal power and authority as to all governmental functions, that is, executive and legislative, with the president of the board, sometimes designated as mayor, but who does not exercise all the executive powers and is not excluded from the legislative functions. 19 R.C.L. § 51, p. 745.

"The term 'commission form of government' is a generic one, and employed in referring to the government of cities administered by a small number of officials exercising both legislative and executive authority." General Statistics of Cities, 1915, issues by Department of Commerce, Bureau of Census, of U.S.

See, also, many acts of recent legislative sessions as to commission government; and to appreciate a distinction, compare them with the general municipal laws pertaining to the aldermanic form of government. Volume 1, Code of 1907. Indeed, our lawmakers realize a decided difference in the two forms, and have enacted a statute providing a method for going from the commission form to the aldermanic form. Acts 1915, p. 770; State ex rel. Terry v. Lanier, 197 Ala. 1, 72 So. 320.

A close examination of the act in question will disclose that it practically sets up the old aldermanic form of government, with just a few immaterial commission form features; the principal one being naming the ward representatives commissioners, instead of aldermen, and perhaps paying them more than the usual compensation of the old aldermen, and providing that they should be selected by the voters at large, instead of by those of the respective wards, though they are not to be selected from the city at large, but from each ward. The governmental functions, however, are not consolidated in the entire governing board, the executive functions are given to the mayor, and the legislative functions are given to the so-called commissioners. While they are named commissioners, the character of the office must be determined largely from the authority and power given them. The law not only looks to substance rather than form, but abhors the latter when used as a mere cloak or disguise to conceal and mislead as to the former.

Section 45 of the Constitution of 1901, among other things, provides:

"Each law shall contain but one subject, which shall be clearly expressed in its title."

Does the title in question clearly express the subject of the enactment? We think not. While we have heretofore held that this constitutional provision is mandatory, it should be liberally construed in favor of legislative enactments when they are reasonably cognate or germane to the title; but when the title is so misleading and uncertain that the average legislator or person reading the same would not be informed of the purpose of the enactment, it is insufficient. We do not think that any one, from reading the title in question, would be informed that the Legislature would adopt a law providing a form of government like the one set up, as the title indicates a continuation of the commission form of government, and does not even suggest a change from such form to the aldermanic form. This case presents a typical example of what is termed "log-rolling or hodge-podge legislation," as condemned by Mr. Cooley and as discussed and stressed by our court in the cases of Lindsay v. U.S. Savings Ass'n, 120 Ala. 156,24 So. 171, 42 L.R.A. 783, and Ballentyne v. Wickersham, 75 Ala. 533.

The act also contains two subjects, and further violates section 45 of the Constitution. The title and the act both provide for an amendment of the old acts by a substitution therefor of the amendatory act, thus resulting in an absolute repeal of the old law, whether some of its features were or were not in conflict with the new enactment. The result is the new enactment not only provides a form of government for the cities expressly dealt with, to wit, from 50,500 to 100,000 inhabitants, but by repealing the acts of 1911 and 1915 confines all towns or cities under 1,000 inhabitants, or between 50,000 and 50,500 to the aldermanic form of government, by depriving them of the right, under said acts, to adopt the commission form of government. In other words, the act has directly attempted to provide a form of government for the cities there included, and has indirectly changed or affected the government of a certain class of cities and towns not specially embraced in same, but included in the amended acts of 1911 and 1915.

We are aware of the rule as laid down in the cases of Gandy v. State, 86 Ala. 20, 5 So. 420, Thomas v. State, 124 Ala. 48,27 So. 315, and Hawkins v. Roberts Son, 122 Ala. 130,27 So. 327. These cases, however, authorize the striking of a part of the title as immaterial and surplusage when the title is otherwise complete, and also refer to the amendment of certain acts when the bill is an independent act, and of its own force and effect would repeal so much of the old acts as may be in conflict therewith. Here we have, not only a title proposing an amendment of the acts referred to in their entirety, but the enacting part of the bill provides, in effect, the substitution of the new law for the old ones. It says that said acts be amended, etc., "so as to read as follows," and which shows an entire repeal of the amended acts and a substitution of the new one therefor. Allgood v. Sloss, etc., Co., 196 Ala. 500, 71 So. 724. True, the repealing clause of the act evinces only a purpose of repealing all laws, only to the "extent of a conflict"; but this is, of course, referable to laws other than the acts of 1911 and 1915 which are expressly included in and substituted by the act in question.

We have observed the well-established rule of considering this act with the presumption of its validity and with the realization that it should not be condemned, unless the court is satisfied beyond a reasonable doubt that it is repugnant to the Constitution, but are constrained to hold that the repugnancy is so glaring and palpable that we have no reasonable avenue of escape from declaring the same null and void; and when acts clearly violate imperative provisions of the Constitution it is the mandatory duty of the court to uphold and enforce our organic law. We are aware of the fact that the act in question was a solemn attempt on the part of the Legislature, and that its provisions have been accepted by the voters of Mobile, and who have expressed a choice in favor of the appellees; but results must not deter courts from enforcing the mandatory provisions of our Constitution. "Duty is ours; consequences are God's."

The judgment of the circuit court is reversed, and one is here rendered dismissing the information of the relators.

Reversed and rendered.

SAYRE, SOMERVILLE, and BROWN, JJ., concur.