State Ex Rel. Adams v. McLellan

Quo warranto to determine whether the clerk of the circuit court of Escambia county (relator) is still the clerk of the county court of Escambia county, as provided in local acts approved February 26, 1889 (Acts 1888-89, p. 657); or whether the judge of the county court of Escambia county is the clerk of the county court, as provided in Code, § 6698, reading:

"The judges of the county courts are the clerks of their respective courts, but may, at their own expense, employ a clerk, who may do all acts not judicial in their character."

The application of the quoted statute (section 6698) depends upon the effectiveness, the validity of the act approved September 25, 1915 (Gen. Acts 1915, pp. 862-865), bearing this title:

"An act to re-establish the county courts which are provided for in article three (3) of chapter one hundred and ninety-eight (198) of the Code of Alabama in all counties wherein the same have heretofore been abolished, except in counties having a population of fifty thousand (50,000) or more according to the last preceding Federal census, and to define the power, jurisdiction and duty of all the county courts which are hereby re-established and of all the county courts which are provided for by article three (3) of chapter one hundred and ninety-eight (198) of the Code of Alabama, and to prescribe the manner in which prosecutions for misdemeanors shall be begun, tried and determined therein and appeals taken therefrom, and to transfer all indictments pending in any county court to the circuit court of the county where found for trial therein, and to repeal all laws, whether local, general or special, in conflict with the provisions of this act."

If the act of 1915 was enacted according to the forms prescribed in the Constitution, and if it offends no provision of the organic law, one of its effects was to constitute the judge of the county court of Escambia county the clerk thereof in virtue of the restored provisions of Code, § 6698, operating to repeal the local act whereby the clerk of the circuit court of Escambia county was constituted the clerk of the county court. Thomas and Torbert Cases, cited infra. A large number of objections are laid against the act of 1915 that are predicated of asserted offendings therein or thereby of provisions of the Constitution. Several of these objections express the contention that the act of 1915 is a "local," not a "general," law, as those laws are defined in section 110 of the Constitution. In responses to applications for rehearing in Thomas v. State ex rel., etc., 200 Ala. 661, 77 So. 35, 36,37, and in State ex rel., etc., v. Torbert, 200 Ala. 663,77 So. 37, 39, 40, the act of 1915 was held to be a general, not a local, law. The court continues satisfied with the conclusion then attained and given effect. It results that objections numbered 1, 2, 3, 4, 5, and 8 in the demurrer to the answer, based upon or referable to the idea that the act of 1915 is, in any respect, a local, not a general, law, are without merit. It is settled in this jurisdiction that classification, for legislative purposes, may be validly predicated of population as shown either by a past or a future census. Board of Revenue v. Huey, 195 Ala. 83, 89, 70 So. 744.

That the above-quoted title of the act of 1915, when read in connection with the body thereof, manifests a compliance with the requirements of section 45 of the Constitution, is not, we think, debatable. Torbert's Case, supra. According to the same authority, the act of 1915 efficiently, validly applied the provisions of article 3 of chapter 198 of the Code of 1907 to the re-established county courts, except as the act of 1915, itself, otherwise prescribes.

It is insisted that this act offends section 96 of the Constitution. That section reads:

"The Legislature shall not enact any law not applicable to all the counties in the state, regulating costs and charges of courts, or fees, commissions or allowances of public officers."

The argument is that the whole act is invalid because the effect of the act's provisions is to destroy the uniformity exacted by section 96 of the Constitution. See opinion of Justice Thomas in Osborn v. Henry, 200 Ala. 353, 76 So. 119. In section 7 of the act it is provided:

"That if any section, clause or provision of this act shall be declared to be unconstitutional it shall not be held to affect any other section, clause or provision, but the same shall remain in full force and effect."

If it should be assumed, for the occasion only, that provisions of the act effected to destroy the uniformity exacted by section 96 of the Constitution, the provisions so operating can be stricken from the act, thus eliminating the separable invalid portions, and leaving a complete, sensible enactment that is capable of observance and enforcement. State ex rel., etc., v. Montgomery et al., 177 Ala. 212, 240-242,59 So. 294, and cases cited. When the courts are properly invoked to determine the measure of the compensation to be paid officers for services within the purview of this act of 1915, the question whether particular provisions of the act offend section 96 of the Constitution may be then considered and conclusively decided; the present proceeding, quo warranto, not affording the appropriate occasion to that end. This view was fully stated in State ex rel., etc., v. Montgomery et al., supra, with the result that the application of the distinction indicated rendered unnecessary — because premature in a proceeding on quo warranto — the decisions of questions that, to resolve, would not lead to the invalidity of the entire enactment.

There is no merit in the contention that the Senate Bill No. 489 — which became, after amendment. the act of 1915 — was so amended on its passage as to change its original purpose; a course inhibited by section 61 of the Constitution. Its original purpose was to re-establish the county courts. As finally approved by the Houses and signed by the Governor, this original purpose was effected. The fact that through a justified classification some of the counties of the state were not affected by the act did not, of course, operate to change the bill's original purpose.

The only other objections to the validity of the act of 1915 relate to the matter of its amendment and passage by the Houses. The bill originated in the Senate. It was numbered 489. The committee to which it was regularly referred reported the bill with an amendment. The amendment was acceptable to the Senate; and, after the bill's amendment, it was regularly approved by the Senate. Up to this point every applicable requirement of the Constitution with respect to the passage of bills was observed. The bill, as passed by the Senate, was copied and sent over to the House. The House amended the bill. The Senate declined to accept the House amendments. A conference was agreed to by the bodies; and conferees, three in number from each House, were named. Subsequently what purported to be a conference report" was presented to the respective bodies. The House conferees, whose names appear in the journal, were Messrs. Blackwell, Fite (Tuscaloosa), and Darden. The conference report presented was signed by the three Senators who, the journal shows, were appointed by the Senate. On the part of the House the report was signed by Mr. Blackwell, who, the journal of that body shows, was appointed a member of the committee on conference. The only other signator, on the part of the House conferees, was Mr. Lapsley. The journal of the House does not disclose his appointment as a member of the committee on conference with respect to the disagreement of the bodies as to Senate Bill No. 489. Since the journal is not required by the Constitution to affirmatively show the names of the members of committees on conference, it will be presumed, in the absence of a contrary recital in the journal, that the signators to a conference report were duly constituted members of a conference committee to consider and report upon the subject of disagreement between the House and the Senate. State ex rel. v. Buckley, 54 Ala. 599, 613. In this instance, it will be presumed, nothing to the contrary being disclosed by the journal, that Mr. Lapsley was substituted by the authority of the House for either Mr. Fite or Mr. Darden, members of the conference committee as originally constituted. In form and phrase the conference report presented to the House, and to the Senate as well, bore the affirmation that Messrs. Blackwell and Lapsley were conferees on the part of the House. If Mr. Lapsley had not been constituted a conferee on the part of the House, certainly that body would not have recognized or accepted his action in the premises. The journals disclose that, in every instance where a yea and nay vote is exacted by the Constitution on the passage and amendment of bills, it was taken and recorded as the organic law prescribes. The report of the conference committee was adopted by both of the bodies in accordance with the Constitution's prescriptions. Board of Revenue v. Crow, 141 Ala. 126, 150, 151, 37 So. 469.

The enrolled bill, signed by the Governor, was the bill to which the Senate and House had given their constitutionally expressed approval.

The adoption by both of the bodies, of the report of the committee on conference effected the amendment of the bill so as to substitute 50,000 population for 75,000 population in the title of the act and elsewhere in the act.

The order or judgment appealed from is due to be affirmed.

It is affirmed.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.