Ex Parte Western Union Telegraph Co.

The decision of the Court of Appeals in the case in question is correct, notwithstanding it is in conflict with the decision of this court in the case of Alabama Great Southern Railroad Co. v. Ambrose, 163 Ala. 220, 50 So. 1030, and some dicta in other opinions of this court, in reference to section 6112 of the Code; and for this reason we deem it proper to write an opinion, formally overruling the decision in the Ambrose Case, and correcting the dicta in the other cases referred to, in so far as they conflict with the decision in this case. We are constrained to overrule this case for the reason that our Constitution (section 232) fixes the venue of actions brought in this state against foreign corporations, and the Legislature cannot alter or change the same so as to prevent the bringing of suits against such corporations in any county of this state in which the defendant, at the time, may be doing business. And in so far as section 6112 of the Code attempts to provide that actions cannot be so brought in a county or counties in which the defendant foreign corporation is doing business, it is in conflict with the Constitution, and is therefore void.

The constitutional provision in question does not apply to domestic corporations; to these, of course, the statute can apply, and is not, for this reason, void.

This court has repeatedly expressed the idea and doctrine that courts should be slow to overrule former decisions; that the doctrine of stare decisis should be respected and upheld unless the court is clearly convinced that the decision challenged is erroneous.

We have also repeatedly said, and here reassert the doctrine, that a court should never declare a statute to be in conflict with the Constitution unless convinced beyond a reasonable doubt that there is such conflict. Mindful of, and being guided by, these principles, we must overrule the decision in Ambrose's Case, and declare the statute, to which reference is above made, to be null and void to the extent herein indicated.

It may not be out of place to here state some of the reasons which so impel us. The constitutional provision in question (Const. 1901, § 232) appeared in the Constitution of 1875 in practically, if not literally, the same language; and, as a part of that Constitution, was repeatedly construed by this court. It was therefore readopted with such judicial construction. For this reason we feel bound by the former construction. Statutes similar to section 6112 of the Code were also construed in the earlier decisions, with reference to this section of the Constitution, and the two construed together. It is therefore appropriate that we here quote, in part, what was said in those decisions, which held that the constitutional provision was self-executing, inflexible, and unalterable by the Legislature.

Section 232 of the Constitution provides that a foreign corporation "may be sued in any county where it does business," and it covers this case like a blanket, this court having held it to be self-executing (A. U. Tel. Co. v. W. U. Tel. Co.,67 Ala. 26, 42 Am. Rep. 90; N.E. Mortgage Sec. Co. v. Ingram,91 Ala. 337, 9 So. 140), and to be both inflexible and unalterable by the Legislature. And if the Legislature cannot bend or alter it, surely the court ought not so to do. Sullivan's Case, 103 Ala. 377, 15 So. 941, 25 L.R.A. 543.

In the case of N.E. Mortgage Security Co. v. Ingram, supra, this court, speaking through its great Chief Justice Stone, of the same constitutional provision and a similar statute, said:

"The present record raises but a single question. Article 14, § 4, of the Constitution of Alabama ordains that no foreign corporation 'shall do any business in this state, without having at least one known place of business, and an authorized agent or agents therein; and such corporation may be sued in any county where it does business, by service of process upon an agent anywhere in this state.' We have uniformly held that the constitutional clause we have copied is self-executing, without any statute to give it practical operation. Amer. U. Tel. Co. v. W. U. Tel. Co., 67 Ale. 26 [42 Am. Rep. 90]; Beard v. Union Amer. Pub. Co., 71 Ala. 60; Sherwood v. Alvis,83 Ala. 115 [3 So. 307, 3 Am. St. Rep. 695]; Dudley v. Collier,87 Ala. 431 [6 So. 304, 13 Am. St. Rep. 55]; Farrior v. N.E. M. Sec. Co., 88 Ala. 275 [7 So. 200]; Mullens v. Amer. F. M. Co., 88 Ala. 280 [7 So. 201]; Craddock v. Same, 88 Ala. 281 [7 So. 196]; Christian v. American Freehold Land Mortgage Co., 89 Ala. 198 [7 So. 427]. Possibly this question is now out of the field of legitimate debate."

In Farrior's Case (above cited) 88 Ala. 279, 7 So. 201, the court, speaking of the same constitutional provision and of similar statutes, said:

"The legislative act cannot change the construction or meaning of the constitutional clause under consideration. It may throw light on its construction, and render its enforcement more effective; but it can neither add to, nor take from, the legal significance of its meaning, which was the same before as after the date of the enactment designed to give vigor to its execution."

In Sullivan's Case, 103 Ala. 377, 15 So. 943, 25 L.R.A. 543; the court said, relative to the same subject:

"The material changes, which the Constitution works, are that the corporation becomes liable to suit in any county in which it does business, and the process may be served, compelling it to appear, upon an agent anywhere in the state."

The Constitution having thus in terms required foreign corporations to do certain things, in order to acquire the right to do business in the state, and thus in terms subjected them to liability to be sued in any county in which they are then doing business, and thus conferred on citizens the right to sue them in such counties, it is not competent for the Legislature to relieve the corporations of this burden, or to deprive the citizens of the right so conferred. The Legislature may provide statutes to give force, effect, and application to the provisions of the Constitution, but it cannot, as this court has repeatedly reaffirmed, bend or alter such provisions as are self-executing. Suppose a foreign corporation to be doing business in every county in the state: the effect of the self-executing provision of the Constitution is to authorize suit against such corporation in any county in the state. For the Legislature to say that if the action is for a personal injury the suit can be brought, not in any one of the 67 counties, but in only 1 of 2 — that is, where the injury occurred, or where the plaintiff resides — would be, if not to place restrictions upon the self-executing provision, to apply the pruning knife too freely, to cut off 65 scions of his constitutional tree.

If it were a question of the policy or propriety of the law, we would not be prepared to say that the statute is objectionable in requiring this class of actions to be brought in one of the counties mentioned; but the question before us is not one of policy or propriety, but one of the power of the Legislature to alter or change a self-executing provision of the Constitution.

It is not out of place to say that the provisions of section 232 of our Constitution, providing for the venue of actions against foreign corporations, and for the service of process against them, are not common to Constitutions, being regulations usually fixed exclusively by statute; but, as said above, the policy or the propriety of such provisions is not for the courts. The courts must conform to the doctrine of the old maxim, "Ita lex scripta est."

The application is denied, and the judgment of the Court of Appeals affirmed. All the Justices concur, except