Opinion
1 Div. 696.
November 6, 1931.
Appeal from Circuit Court, Mobile County; J. Blocker Thornton, Judge.
Lyons, Chamberlain Courtney, of Mobile, for appellant.
Population, when considered and appropriated in good faith, is recognized as a basis and means for the creation and definition of a class or classes for legislative purposes. That an act based upon proper classification of population may not be presently effective in all counties within such classification of population does not render it a local law. The paramount test is whether in its future application other counties which may fall within the population classification can become subject to the act. Board of Rev. v. Huey, 195 Ala. 83, 70 So. 744; Walden v. Montgomery, 214 Ala. 409, 108 So. 231; State ex rel. v. Thompson, 142 Ala. 98, 38 So. 679; Henry v. State, 218 Ala. 71, 117 So. 626; State ex rel. Collman v. Pitts, 160 Ala. 133, 49 So. 441, 686, 135 Am. St. Rep. 79. Where a statute is reasonably susceptible of two constructions, the one must be given which will uphold rather than the one which will work destruction. Wilkinson v. Stiles, 200 Ala. 280, 76 So. 45. The burden is on appellee to show beyond a reasonable doubt that the act in question is offensive to the Constitution. Henry v. State, supra.
T. M. Stevens, Wm. G. Caffey, S. M. Johnston, Benj. F. McMillan, Jr., and Alex. T. Howard, all of Mobile, for appellee.
The classification, according to population, was not bona fide, but was made for the evident purpose of passing a local law under the guise of a general law. State v. Weakley, 153 Ala. 648, 45 So. 175; Reynolds v. Collier, 204 Ala. 38, 85 So. 465; State v. Williams, 207 Ala. 517, 93 So. 381; State v. Gullatt, 210 Ala. 452, 98 So. 373; Vaughan v. State, 212 Ala. 258, 102 So. 222; Mobile County v. Byrne, 218 Ala. 5, 117 So. 83; In re Opinion of the Justices, 216 Ala. 469, 113 So. 584; Birmingham Electric Co. v. Harry, 215 Ala. 458, 111 So. 41; State v. Grayson, 220 Ala. 12, 123 So. 573. No county hereafter attaining the requisite population could automatically come within the operation of the act, because of the further requirement that such county shall "now" have an inferior civil or criminal court whose jurisdiction is conferred on the court which the act purports to create. Authorities, supra.
The parties have urged immediate decision of this case because of a pending election, and we merely state our conclusion that the act originating in House Bill 1032, entitled "An Act To create a Court of Domestic Relations in lieu of Juvenile Courts in all counties in the State of Alabama, now having, or which may hereafter have, a population of not less than 105,000 nor more than 300,000, according to the last or any succeeding Federal Census," etc., is a local law within the meaning of section 110 of the Constitution 1901, and that section 106 of the Constitution 1901 was violated in its passage.
The attempted classification, when the whole act is considered, is so restrictive as to designate, rather than classify, limiting the operation of the act, present and future, to the county of Mobile, and, under the repeated rulings of this court, such classification cannot be sustained. Mobile County v. Byrne, 218 Ala. 5, 117 So. 83; State v. Gullatt, 210 Ala. 452, 98 So. 373; In re Opinion of the Justices, 216 Ala. 469, 113 So. 584; State v. Grayson, 220 Ala. 12, 123 So. 573; Birmingham Electric Co. v. Harry, 215 Ala. 458, 111 So. 41.
The judgment here is that the circuit court did not err in sustaining the demurrers to the answer of respondent, or in rendering a judgment of ouster, and that the same should be affirmed.
Affirmed.
All the Justices concur, except SAYRE, J., not sitting.