Yeilding v. State Ex Rel. Wilkinson

Proceedings in the nature of quo warranto instituted by the state of Alabama on relation of Horace C. Wilkinson, seeking to oust the appellants from the office of members of the personnel board of Jefferson county, Ala. This board was created by an act of the legislature of Alabama, approved August 28, 1935. General Acts of Legislature 1935, p. 691.

The title of the act, under which the respondents attempted to justify their holding of said office, reads: "To create and establish in each County of the State of Alabama which has a population of 200,000 or more people, according to the last Federal Census, or which may hereafter have a population of 200,000 or more people, according to any subsequent Federal Census, a County wide Civil Service System, affecting certain personnel whose compensation is now or may hereafter be payable in whole or part from the public funds of such counties or municipalities located therein; to create a Citizen Supervisory Commission and to create a Personnel Board and other agencies for the supervision and administration of said System in each of such Counties; to define the scope and extent of said System and the powers, duties and authority of said Commission, Board and other agencies; to regulate and define the manner, form and extent of the control, supervision and authority of such agencies over such Personnel and over such counties and municipalities therein; to provide for payment of the expenses of each such agency and for a division of such expense between the county affected and the municipalities therein; to provide penalties for the violation of this Act and of rules and regulations adopted pursuant thereto; and to repeal all laws and parts of laws inconsistent with the provisions hereof."

On the hearing of the cause, the court was of the opinion the act in question was unconstitutional and void, and entered judgment of ouster accordingly. From this judgment the respondents have prosecuted the present appeal.

A careful reading and consideration of the act creating the personnel board demonstrates to our mind that there are but two questions of real moment to be determined. First, does the act deal with two subjects, county and municipal governments, in violation of section 45 of the Constitution; and, second, Was it within legislative competence to abridge the right of local self-government of municipalities falling within the class designated by the act, to the extent and in the manner attempted in the act? As we see it, these are the only two questions presented by this appeal, which call for discussion here.

There can be no escape from the conclusion that the one dominating purpose and thought of the lawmakers, in adopting the act now before us, was to secure greater economy and a better and more efficient administration of the affairs of the counties and cities affected by the act.

It is to be noted that the civil service system provided by said act deals only with such appointees and servants whose compensation may be payable in whole or in part from the public funds, within the designated territory. The mere fact that some of the employees draw their compensation from the funds of the county, while others draw their pay from the cities, is a mere incident.

Through the whole act there is complete unity and singleness of purpose; economy and efficiency in the administration of the affairs of the counties and cities falling within the provisions of the act.

It is insisted that, because the act deals both with county and city government, it contains two subjects, incongruous and unrelated, and therefore offends section 45 of the Constitution; that a county is a quasi municipal corporation, created solely as an arm of the state, to enable it to better administer its governmental affairs; that it is founded not upon the will or consent, necessarily, of the people of the territory out of which it is formed, but that it is created by the sovereign power of the state in accordance with the sovereign will, without the particular solicitation, consent, or concurrence of the inhabitants of the territory thus set apart; that a municipality is a legal entity, endowed by law with certain rights and powers, including the right of local self-government.

It is because of this supposed distinction between a county and municipality, it is insisted that the Legislature cannot in the same act deal with both; that, to do so, would render the act offensive to section 45, Constitution, as containing more than one subject, and therefore void.

It is clear, however, that counties and cities are political subdivisions of the state, each created by the sovereign power of the state, in accordance with the sovereign will, and each exercising such power, and only such power, as is conferred upon it by law. Each is a creature of the statute, and the same power which can create, can abolish.

What was said by this court in State ex rel. Wilkinson v. Lane, 181 Ala. 646, 62 So. 31, 34, is in line with the current of authority elsewhere, and is as follows: "Every power which is possessed by a municipality is a power which is delegated to it by the state, and every power which it possesses can, unless there is some constitutional inhibition to the contrary, be taken from it by the state." There the right of the Legislature to provide for appointment by the Governor of a commissioner of the city of Birmingham was recognized, and the only real contested question related to section 150 of the Constitution, due to the office (judicial) held by the newly appointed commissioner, Judge Lane.

This statement of the law by this court in the Lane Case, supra, finds direct and full support in the following statement of the rule found in 43 Corpus Juris, p. 76, § 15: "A municipal corporation can have no other source than the sovereign power; its creation is an attribute of sovereignty. It is a political creature, and the creature cannot be greater than its creator. Certain sovereign powers, such as legislative power, and the power of eminent domain, are conferred on a municipal corporation, and nothing less than sovereign power can confer the supreme faculties upon any creature; nor can he who has no sovereign power confer any."

It is thus obvious that in the appointment and selection of appointees, agents, and officers in certain counties, and cities within such counties, and who may be paid out of the public funds of such counties and cities, the Legislature was dealing with but one subject, and that subject related to the administration of public affairs intrusted to its creatures, and over which it held the power to impose its sovereign will, in short, over which it had the power of life and death. In speaking to the said counties and cities through the act in question it spoke but one voice, and for one purpose; economy and efficiency in the administration of the affairs of the political entities which it had created.

This being true, can it be said that the act impinges upon section 45 of the Constitution? We think not.

In the case of State ex rel. Ward v. Henry, 224 Ala. 224,139 So. 278, 281, Mr. Justice Gardner, in speaking for the court, made the following clear and concise statement of the rule on the question now before us, which is determinative, in our opinion, that the act does not offend section 45 of the Constitution: "It is settled under our decisions that however numerous the subjects stated in the title, and however numerous the provisions in the body of the act may be, if they can be by fair intendment considered as falling within the subject-matter legislated upon in the act, or necessary as ends and means to the attainment of such subject, the act does not offend our constitutional provision that no law shall embrace more than one subject, which must be expressed in its title. Allman v. City of Mobile, 162 Ala. 226, 50 So. 238; Ballentyne v. Wickersham, 75 Ala. 533, 534; Board of Revenue v. Hewitt,206 Ala. 405, 90 So. 781; State ex rel. Leslie v. Bracken, 154 Ala. 151,45 So. 841."

A statute has but one subject, no matter how many different matters it relates to, if they are all cognate, and but different branches of the same subject. Kelley v. Mayberry Township, 154 Pa. 440, 26 A. 595. It is to be noted that Pennsylvania has a constitutional provision similar to our section 45.

We are, therefore, at the conclusion that the contention that the act offends section 45 of the Constitution cannot be sustained.

This brings us to a consideration of the second question noted above, viz., Was it within legislative competence to abridge the right of local self-government of municipalities falling within the class designated by the act, to the extent and in the manner attempted in the act?

In the case of Mayor and Council of Americus v. Perry,114 Ga. 871, 40 S.E. 1004, 1007, 57 L.R.A. 230, the Supreme Court of Georgia had occasion to consider the question of the right of the Legislature of Georgia to deal with the matter of the appointment of the officers of a municipality in that state, and that court, speaking through Cobb, J., observed: "The fact that municipal corporations, prior to the adoption of the constitution of 1877, were given the right and were exercising the right to control their own affairs through officers chosen by them, would not prevent the general assembly from taking away this right; there being nothing in the constitution which imperatively requires it to be construed as guaranteeing that this right of local self-government for municipal corporations shall exist absolutely in all cases. The right of the people of a municipal corporation to control its affairs is not an inherent right residing in the people, but is a right dependent for its existence upon legislative will, and how far they shall be given this right is a matter addressed solely to legislative discretion. See, in this connection, Diamond v. Cain, 21 La. Ann. 309; State v. Hunter, 38 Kan. 578, 17 P. 177; State v. Covington, 29 Ohio St. 102; Com. v. Plaisted, 148 Mass. 375,19 N.E. 224, 2 L.R.A. 142, 12 Am.St.Rep. 566; Mayor, etc., of Baltimore v. State, 15 Md. 376, 378, 74 Am.Dec. 572."

Judge Dillon, in his Treatise on Municipal Corporations (5th Ed.) § 98, p. 154, says: "Independently of any constitutional guarantee an inherent right of local self-government which is beyond legislative control has been asserted to defeat legislation depriving or tending to deprive the corporation of the control of some part of its affairs. The occasion for the assertion of the right has usually been the enactment of a statute depriving a city or other public corporation of the power to appoint an officer or board exercising local functions, and conferring the power of appointment on the executive, or mandatory legislation for a local improvement, for the incurring of debt, the issue of bonds, or the payment of a claim, or a statutory enactment prescribing the terms and conditions of contracts by the municipality. Such legislation has frequently caused the courts to consider the abstract question whether a municipality has any inherent right of local self-government which is beyond legislative interference, and much has been said in support of or against the existence of the right, which should be construed as having reference only to the question before the court on the facts of the particular case, although couched in language so sweeping as to give it general application. It must now be conceded that the great weight of authority denies in toto the existence, in the absence of special constitutional provisions, of any inherent right of local self-government which is beyond legislative control. The Supreme Court of United States has declared that a municipal corporation in the exercise of all its duties, including those most strictly local or internal, is but a department of the State. The legislature may give it all the powers such a being is capable of receiving, making it a miniature State within its locality; or it may strip it of every power, leaving it a corporation in name only; and it may create and recreate these changes as often as it chooses, or it may itself exercise directly within the locality any or all the powers usually committed to a municipality."

In 19 R.C.L. p. 730, § 35, we find the following statement of the rule under consideration: "The power to create a municipal corporation, which is vested in the legislature, implies the power to create it with such limitations as the legislature may see fit to impose, and to impose such limitations at any stage of its existence."

We are in full accord with the statement of Judge Dillon in his statement of the law as above set out, and are at the conclusion that it was within legislative competence to enact the law in question; that it violated no inherent rights of the people of the municipalities affected.

Nor is there merit in the argument that the provision of section 4 of the act delegating to the citizens supervisory commission the power to appoint a personnel board is unconstitutional delegation of legislative power. The section creates this commission, designating certain powers and duties, here unnecessary to enumerate. It is sufficient to say the provisions of this act as to the power and duties of the members of the commission meet the test and constitute the commissioners public officers, as defined by this court in Montgomery v. State, 107 Ala. 372, 18 So. 157, which is in harmony with the generally accepted rule. See 46 Corpus Juris, pp. 928-931. True, the power conferred by the Legislature to make laws cannot be delegated by that department to any other body or authority; but this does not preclude the Legislature from delegating any power not legislative, which it may itself rightfully exercise. 1 Cooley on Constitutional Limitations (8th Ed.) p. 224. The delegation to the commission of the power of appointment is not delegating lawmaking power, but merely a delegation of power that it could rightfully have exercised itself in an administrative capacity, and does not come within the prohibition or rule referred to. This question was considered in Parke v. Bradley, State Treasurer, 204 Ala. 455,86 So. 28, and in Fox v. McDonald, 101 Ala. 51, 13 So. 416, 21 L.R.A. 529, 46 Am.St.Rep. 98, and the right of the Legislature to delegate this appointing power fully sustained. We feel that further discussion of this objection is unnecessary.

We find nothing in Fox v. McDonald, supra, which in the least militates against the conclusion here reached. The pivotal point of that decision related to the constitutional power of the Legislature to delegate to the probate judge of the county the power to appoint a police commission for the city of Birmingham, which commission selected petitioner as chief of police of said city. There is much discussion in the opinion of the division of the state into distinct departments, all of which was leading to the conclusion that this appointive power was not unconstitutional, because conferring upon a member of the judicial department the power of appointment. The holding was in accord with the quotation from Mr. Freeman in his note to 13 Am.St.Rep. 125, where it is said: "The truth is, that the power of appointing or electing to office does not necessarily and ordinarily belong to either the legislative, the executive, or the judicial department. It is commonly exercised by the people, but the legislature may, as the lawmaking power, when not restrained by the Constitution, provide for its exercise by either department of the government, or by any person, or association of persons whom it may choose to designate for that purpose." And this is in accord with the view we here entertain.

To uphold this act it is not at all necessary to question or define the limits of legislative control over the corporate or proprietory activities of municipalities, such as the ownership and operation of public utilities. For certain purposes our laws recognize the construction and maintenance of public streets as of this class.

The power to own and operate public utilities is derived, like other municipal power, from the state.

Conceding that the due process clause of the Federal Constitution (Amend. 14), and the clause forbidding the impairment of the obligation of contract (article 1, § 10), protect the property and contract rights acquired under state authorization, this by no means forbids legislative regulation and control by civil service laws designed to protect all interests concerned against inefficiency, waste, and the demoralization of government through the spoils system. The civil service set up is itself subject to the same judicial review as any other agency, if the guaranties of the Federal Constitution are violated.

The question of legislative control over municipal corporations, including their proprietory operations, is fully discussed in City of Trenton v. State of New Jersey,262 U.S. 182, 43 S.Ct. 534, 67 L.Ed. 937, 29 A.L.R. 1471. See, also, Shirk v. Lancaster City, 313 Pa. 158, 169 A. 557,90 A.L.R. 688.

Civil service laws as applicable to municipalities are treated in 43 Corpus Juris, p. 606 et seq., and are there declared very generally upheld as against constitutional attack.

If it be conceded that the act in question is a local law, yet we find nothing therein which runs counter to paragraph 18 of section 104 of the Constitution, as argued.

The act is original in form and substance, and is not amendatory in character. In our opinion, section 104 of the Constitution is here without application.

Mindful of our solemn duty to uphold a law, which has received the sanction of the Legislature, unless we are convinced beyond a reasonable doubt of its unconstitutionality, we have given the questions involved that careful consideration that their importance required.

It is our judgment that the act in question, as for any objection here urged against its constitutionality, was and is a valid exercise of legislative power.

It follows that the judgment of ouster appealed from must be and is reversed, and one here rendered adjudging petitioners entitled to the office from which they were by the judgment of the circuit court excluded.

Reversed and rendered.

ANDERSON, C. J., and GARDNER, BOULDIN, and FOSTER, JJ., concur.

THOMAS and BROWN, JJ., dissent.