Opinion
8 Div. 994.
January 12, 1928. Rehearing Denied May 10, 1928.
Appeal from Circuit Court, Morgan County; James E. Horton, Judge.
J. M. Kelley, of Hartselle, and A. J. Harris and E. W. Godbey, both of Decatur, for appellants.
The building of a courthouse is provided for under the general law, and the local act here involved contravenes section 105 of the Constitution. Matkin v. Marango County, 137 Ala. 155, 34 So. 171; Weeks v. Bynum, 158 Ala. 231, 48 So. 489; Polytinski v. Wilhite, 211 Ala. 94, 99 So. 843. The same general relief can be obtained under the local law as under the general law. Forman v. Hair, 150 Ala. 589, 43 So. 827; Brandon v. Askew, 172 Ala. 160, 54 So. 605; Sisk v. Cargile, 138 Ala. 172, 35 So. 114; Board of Rev. v. Kayser, 205 Ala. 289, 88 So. 19; Montgomery v. Reese, 149 Ala. 188, 43 So. 116; City Tr. Co. v. State, 172 Ala. 197, 55 So. 511; Dunn v. Dean, 196 Ala. 486, 71 So. 709. The major subject of the local and general acts is the same. Ex parte Ala. Brokerage Co., 208 Ala. 242, 94 So. 87; Norwood v. Goldsmith, 168 Ala. 224, 53 So. 84; McWhorter v. Lowndes County, 167 Ala. 370, 52 So. 750; Board of Rev. v. Farson, 197 Ala. 375, 72 So. 613; L.R.A. 1918B, 881; Dunning v. Holcombe, 203 Ala. 546, 84 So. 740; State v. Brown, 60 Ohio St. 462, 54 N.E. 526. The details, special features, and instrumentalities are no part of the relief. Montgomery v. Reese, 149 Ala., 188, 43 So. 116; Allopathic, etc., v. Fowler, 50 La. Ann. 1358, 24 So. 814; Dodd v. Comm. Court, 203 Ala. 271, 82 So. 521. The local law contravenes Constitution, § 104 (15), in conferring on the commission all the powers and authority of the board of revenue with respect to levying and collecting taxes. Little v. Huey, 137 Ala. 667, 35 So. 134; Code 1923, § 217; Talley v. Comm. Court, 175 Ala. 644, 39 So. 167. The invalidity of several sections of the local act wrecks the whole. Thomas v. State, 16 Ala. App. 145, 75 So. 823; Alford v. Hicks, 142 Ala. 355, 38 So. 752; Lehman v. State Board, 208 Ala. 185, 94 So. 94; Kyle v. Wiggins, 212 Ala. 116, 102 So. 145; Randolph v. Builders' Co., 106 Ala. 374, 17 So. 721. The inclusion in the body of the act of provision not foreshadowed by the title renders the act invalid. Board v. Merrill, 193 Ala. 521, 68 So. 971; Randolph v. Builders' Co., supra; Lindsay v. U.S. S. L. Co., 120 Ala. 156, 24 So. 171, 42 L.R.A. 783.
Tennis Tidwell, of Albany, and S. A. Lynne, of Decatur, for appellees.
The Legislature has power by local legislation to create and name the personnel of a commission and to clothe it with power to build a courthouse for a particular county, if this commission is different in personnel, in the selection of the personnel and in the tenure of its personnel from the governing board or other agency which is clothed with power for this purpose under the general law. Local legislation is permissible if the accomplishment of the legislative end is different in form and manner from that provided for by the general law. Dunn v. Dean, 196 Ala. 486, 71 So. 709; State v. Prince, 199 Ala. 444, 74 So. 939; Brown v. Slaughter, 196 Ala. 428, 71 So. 416; Head v. Hood, 214 Ala. 353, 107 So. 854; Polytinski v. Wilhite, 211 Ala. 94, 99 So. 843; Brandon v. Askew, 172 Ala. 160, 54 So. 605. The powers conferred on the board of revenue by Code, §§ 213 and 217, to levy special tax, does not authorize the levy of a tax to raise funds to build the courthouse. Ex parte Best, 201 Ala. 641, 79 So. 113; State v. Street, 117 Ala. 203, 23 So. 807; 15 C. J. 635. The local act does not violate section 45 of the Constitution. Ex parte Pollard, 40 Ala. 77; Lindsay v. U.S. S. L. Ass'n, 120 Ala. 156, 24 So. 171, 42 L.R.A. 783; Randolph v. Supply Co., 106 Ala. 501, 17 So. 721; Ballentyne v. Wickersham, 75 Ala. 533; State v. Gunter, 170 Ala. 165, 54 So. 283; State v. Teasley, 194 Ala. 574, 69 So. 723, Ann. Cas. 1918E, 347; Opinion of the Justices, 216 Ala. 136, 112 So. 317; Dodd v. Comm. Court, 203 Ala. 271, 82 So. 521; Chapman v. Ry. Fuel Co., 212 Ala. 108, 101 So. 879; Gibson v. State, 214 Ala. 38, 106 So. 231. It was permissible for the Legislature to designate the site in Decatur for the location of the courthouse. Marengo County v. Matkin, 134 Ala. 275, 32 So. 669; Matkin v. Marengo County, 137 Ala. 155, 34 So. 171; Rogers v. Wells, 216 Ala. 514, 113 So. 524. The act does not violate section 104 (15) of the Constitution. Sisk v. Cargile, 138 Ala. 172, 35 So. 114.
The proceeding is in the nature of quo warranto, on the relation of citizens of Morgan county to oust respondents from the exercise of official prerogatives alleged to be in usurpation of powers vested by law in the board of revenue of the county.
Respondents, by answer, claim their authority under a local statute, approved August 24, 1927, known as the Morgan County Court House Commission Act. Local Acts 1927, p. 249.
Demurrers to the answer challenge the constitutionality of this act upon several grounds. Demurrers being overruled, the relators declined to plead further, and the petition was dismissed.
The assignments of error on appeal go to the rulings on demurrer. The purpose of the litigation is to test the constitutionality of the legislative act in question.
The main contention of appellants is that the Court House Commission Act is violative of section 105 of the Constitution, saying:
"No special, private or local law, * * * shall be enacted in any case which is provided for by a general law, or when the relief sought can be given by any court of this state; and the courts, and not the Legislature, shall judge as to whether the matter of said law is provided for by a general law, and as to whether the relief sought can be given by any court."
Stated concisely, the view of appellant is: That the "case * * * provided for" by this local law, "the matter of said law," is the construction and equipment of a court house for Morgan county; that such matter is provided for by general law conferring plenary powers on the board of revenue, in the erection of court houses (Code, § 212), with power to levy special taxes to pay the debt incurred therefor (Code, § 213).
The act in question creates a court house commission composed of five citizens of the county named in the act; empowers the commission to build and construct, on a site named in the act, a court house of such size, material, plans and specifications as the commission may determine, to make contracts, and, in general, to exercise all the powers in the premises heretofore held by the board of revenue.
A county is a unit of government invested with important functions of local character, and also in relation to the state, its revenues, the administration of its laws, etc. These functions involve the exercise of legislative, judicial, and executive or administrative powers. These powers are, in the main, conferred and defined by state legislation, and to be exercised by a governing body or bodies of legislative creation.
Among the powers conferred and duties imposed by legislation is that of erecting, furnishing, and equipping necessary public buildings, including a court house, the seat of government, a place to house its records and hold the courts with office space and equipment for the transaction of public business.
A statute creating a commission, a governing body, with the power and duty to adopt plans, make contracts, arrange the financing, levy taxes, and provide proper supervision for the erection of a court house, commits to such commission legislative and administrative powers, discretionary in character calling for a personnel of decided fitness.
Without regard to other features of the act before us, the creation of a special court house commission, with personnel named by the Legislature, was manifestly a primary, if not a controlling, purpose in this legislation.
It does not necessarily reflect upon the capacity or character of the personnel of the board of revenue chosen for fitness to perform the wide range of duties pertaining to county affairs, and it may be, without any regard to the unusual task of providing a suitable court house. The demands of the general duties of the board of revenue may have been such that it was deemed best to withdraw the responsibility of building a court house from that board and vest it in another. In any event, the creation of a special governing body in this behalf was purely a matter of legislative discretion. The courts have no power to control legislative discretion, nor even to inquire into the motives of legislators.
This court has in numerous cases had occasion to consider the application of section 105 of the Constitution to local legislation, and in some has sought to define in general terms its scope of operation on matters not withdrawn from the field of local legislation by section 104.
Sufficient to say now, it is settled, we think, by our decisions, that this section does not withdraw the legislative discretion to prescribe or change the governing agencies of counties by local legislation suited to the varied needs of counties of widely different conditions as to population, wealth and local requirements.
Such legislation need not be based upon enlargement or curtailment of governmental functions. General laws may already meet all the demands in that regard, and agencies may be provided by general law; yet, if a substantial object of the local law is to abolish one agency and invest its functions in another, to consolidate agencies, to provide additional ones to take over and reduce the labors of existing agencies or to create new ones deemed to be better fitted to exercise in whole or in part functions theretofore committed to an existing agency, such local act is not within the inhibition of section 105 of the Constitution.
In this connection we deem it proper to say section 105 is not intended to strike down as to this class of legislation the provisions of sections 42 and 43 of the same Constitution defining the three co-ordinate departments of government, and committing the legislative, executive, and judicial power each to a separate body of magistracy. These sections are fundamental in our institutions. To say by judicial construction that the creation of a court house commission is mere matter of form or detail, not of the substantial "matter of such law," is to enter the domain of legislative discretion, to pass upon the need of such law in the particular case, a matter open to the inquiry of the Legislature as a guide to legislative discretion, and not open to the courts.
In support of the principles above announced we cite the following line of cases: Dunn v. Dean, 196 Ala. 486, 71 So. 709; State, etc., v. Prince, 199 Ala. 444, 74 So. 939; Brandon v. Askew, 172 Ala. 160, 54 So. 605; Board of Revenue v. Kayser, 205 Ala. 289, 88 So. 19; Jackson v. Sherrod, 207 Ala. 245, 92 So. 481; Riley v. State, 209 Ala. 505, 96 So. 599; Polytinsky v. Wilhite, 211 Ala. 94, 99 So. 843; Ex parte Ala. Brokerage Co., 208 Ala. 242, 94 So. 87; Forman v. Hair, 150 Ala. 589, 43 So. 827; City Bank Trust Co. v. State, 172 Ala. 197, 55 So. 511; City Council v. Reese, 149 Ala. 188, 43 So. 116.
Other provisions of the act, such as fixing the location of the court house, at the old site owned by the county, providing safeguards in the form of penalties against the architect and contractor for careless or intentional failure of duty, penalties against commissioners for having any private interest in the contract or material furnished while commissioners, or for a fixed time after severance from the commission, and providing for prompt presentation of claims growing out of the contract, and a statute of limitations as to actions on such claims, may be considered as cumulative modifications of the general law and part of the subject-matter of the local law as affected by section 105. It is unnecessary to determine whether these provisions would, within themselves, constitute a sufficient basis for a local law under that section.
The title to the act "to provide for the erecting * * * equipping and outfitting of a court house for Morgan county, * * * and to establish for the consummation of such purpose a court house commission; * * * and to prescribe the powers and duties of said commission," fully warrants the mandatory provisions of the act to the effect that the commission "shall erect," etc. That the title of the act further "invests the commission with power and authority now held by the board of revenue," for the purpose stated, does not render the title deceptive and misleading, in that the board of revenue has some discretion as to the necessity for building a court house.
The act cannot be condemned on such ground as in violation of section 45 of the Constitution. The subject of the act expressed in the title naturally suggests to the thoughtful legislator provisions touching its location within the limits as to place fixed by the Constitution, as well as safeguards to protect the public interest against breach of duty on the part of those connected with the enterprise. Such provisions are incident and germane to the theme of legislation in hand, within the meaning of section 45.
Subdivision 15, § 104, forbidding local legislation "regulating either the assessment or collection of taxes," aims at uniformity in the system of laws providing the machinery for the assessment and collection of taxes. The duties of officers in this regard are ministerial or quasi judicial in character.
Code, § 213, conferring upon the governing bodies of the several counties the power to levy a special tax within constitutional limit to pay debts incurred for public buildings, etc., deals with the legislative power to provide revenue by the levy of taxes. True, it uses the phrase "levy and collect," but in such connection as to clearly import the legislative act of levying and ordering the collection of such taxes through the channels provided by general law for the purpose. It has never been construed as making the board of revenue a collector of taxes within the meaning of subdivision 15, § 104. Sisk v. Cargile, 138 Ala. 164, 172, 35 So. 114.
Section 20 of the act in question, conferring upon the court house commission the powers theretofore vested in the board of revenue under section 213, so far as relates to the raising of funds for the court house, deals with the same legislative power, and is not in conflict with subdivision 15, § 104.
We may note that, if it were held otherwise, and the power to "levy and collect" this special tax remains with the board of revenue, that board would be required to make the levy pursuant to lawful contract to meet the indebtedness incurred in the erection of the court house. Board of Revenue v. Farson, 197 Ala. 375, 72 So. 613, L.R.A. 1918B, 881.
The argument that the entire enterprise must fail, and the entire act should be declared void in case the court house commission is not vested with the power to levy the special tax is therefore untenable.
We may note further that, if section 213 does relate in part to the "collection" of taxes within subdivision 15, § 104, a power which cannot be vested in the commission by local law, such power would remain with the board of revenue, and would not defeat the power to levy the tax which can be conferred by the local law.
The argument that, if any part of a local law is unconstitutional, the whole must fail, is untenable. The case of Alford v. Hicks, 142 Ala. 355, 38 So. 752, involved a local law wherein the published notice under section 106 of the Constitution disclosed that the proposed law would be unconstitutional and void, if passed, and was sought to be amended in course of passage so as to render it constitutional. The fact that the published act was unconstitutional on its face would lull all opposition into acquiescence is the basis of the decision.
Here no question is raised as to the published notice, nor of amendment while pending. By the logic of the Alford Case, this act is subject to the general, well-known rule that the invalidity of severable and subordinate provisions of the act, if any, does not invalidate the whole, especially where, as here, the act so provides.
The validity of the provision reducing the time for presentation and suit upon claims arising under the act is left an open question. It is not essential to a decision in this case.
Affirmed.
All the Justices concur.