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In Van Sandt v. Bell, 260 Ala. 556, 558, 71 So.2d 529, 531 (1954), dealing with a municipality, this Court held, "While under section 89 of the Constitution a city cannot enact an ordinance inconsistent with a state law, there is and can be no legislative restriction on its own power to make an enactment inconsistent with an act previously passed by it."
Summary of this case from Blue Cross and Blue Shield v. HodurskiOpinion
8 Div. 617.
March 25, 1954.
Appeal from the Circuit Court, Madison County, E. H. Parsons, J.
Russell W. Lynne, Decatur, for appellant.
Griffin, Ford, Caldwell Ford, Huntsville, amici curiae.
The local act is in conflict with § 6, Title 22 of the Code 1940, in committing the enforcement of the act to the county board of barber examiners. Lisenba v. Griffin, 242 Ala. 679, 8 So.2d 175. The act is violative of Section 105 of the Constitution of Alabama. City Bank Trust Co. v. State, 172 Ala. 197, 55 So. 511; City of Montgomery v. Reese, 149 Ala. 188, 43 So. 116; Forman v. Hair, 150 Ala. 589, 43 So. 827. Whether or not the matter of the local act is provided for by general law and whether or not relief can be given by the courts is a judicial and not a legislative question. Forman v. Hair, supra. The act contains many regulations which violate Section 1 of the Constitution. Lisenba v. Griffin, supra. And the 14th Amendment to the Constitution of the United States. Weill v. State, 250 Ala. 328, 34 So.2d 132. Where invalid provisions of local act are so important to general plan and operation of act that it is apparent the legislature would not have passed the act had it perceived such invalidity, the entire act must go down with the invalid portions. A. Bertolla Sons v. State, 247 Ala. 269, 24 So.2d 23.
Smith, Johnston Butler, Huntsville, for appellees.
The general right of a person to engage in any trade, profession or business is subject to the inherent power of the State to make all laws and regulations respecting the use and enjoyment of property rights necessary for the preservation of public health, and such regulations do not deprive owners of property without due process of law or do not deny the parties affected thereby the equal protection of the law. Moler v. Whisman, 243 Mo. 571, 147 S.W. 985, 40 L.R.A. N.S., 629; Const. 1901, Sec. 105; Parke v. Bradley, 204 Ala. 455, 86 So. 28; State v. Zeno, 79 Minn. 80, 81 N.W. 748, 48 A.L.R. 88; Cooper v. Rollins, 152 Ga. 588, 110 S.E. 726, 20 A.L.R. 1111; State v. Armeno, 29 R.I. 431, 72 A. 216; State v. Sharpless, 31 Wn. 191, 71 P. 737; City of Miami v. Shell's Super Store, Fla., 50 So.2d 883; State v. Polakow's Realty Experts, 243 Ala. 441, 10 So.2d 461; 11 Am.Jur. § 337; Weill v. State, 250 Ala. 328, 34 So.2d 132. The legislature may pass laws of local application to meet local needs when the subjects of such laws are not prohibited by Section 104 of the Constitution. Standard Oil Co. of Kentucky v. Limestone Co., 220 Ala. 231, 124 So. 523; Talley v. Webster, 225 Ala. 384, 143 So. 555; Dunn v. Dean, 196 Ala. 486, 71 So. 709. Whether local needs demand additional or supplemental laws substantially different from the general law is a legislative, and not a judicial, question. Standard Oil Co. of Kentucky v. Limestone Co., supra; Talley v. Webster, supra; State ex rel. Day v. Bowles, 217 Ala. 458, 116 So. 662. Where a Legislative Act contains a separability clause, the invalidity of any portion thereof does not affect the validity of the remaining portions when the valid portion is an enactment sensible and capable of being executed without the invalid. Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So.2d 810; Newton v. City of Tuscaloosa, 251 Ala. 209, 36 So.2d 487; Opinion of the Justices, 247 Ala. 195, 23 So.2d 505. The delegation in Section 9 of general power to County Board of Barber Examiners to determine the fitness of applicants and to fix the nature of the examination based upon fundamental and scientific principles of barbering, does not vest in the Board arbitrary discretion to grant or withhold a license, since Section 16 provides that an applicant who feels aggrieved can have his recourse to the Courts. Clark v. State, 169 Miss. 369, 152 So. 820.
This is a suit in equity brought by complainant, appellant here, and seeks a declaratory judgment holding that local act No. 466, approved September 15, 1939, Local Acts 1939, page 280, is unconstitutional because in violation of section 105 of the Constitution of 1901. A final decree was rendered which upheld the act against that attack, except as to section 11 of it which made provision for minimum prices and hours for barbers' services. That section of said act was held unconstitutional pursuant to a stipulation of the parties made at the hearing and trial. It was also then argued that the present barber board has, since the approval of the act and up to that time, been attempting to enforce and enforcing the various provisions of the act with the exception of section 11.
In the case of Lisenba v. Griffin, 242 Ala. 679, 8 So.2d 175, this court was dealing with an ordinance of the city of Gadsden, which was not affected by the local act here in question, but which gave expression to some principles which apply to this suit. It was there held that the city could not regulate the charges for barbers' services because that would violate a freedom secured by section 1 of the "Declaration of Rights" of our Constitution. It was held to be inconsistent with section 6, Title 22, Code, and therefore violative of section 89 of the Constitution. It was further held that the mere declaration by the legislature that a certain kind of business was affected with a public interest is not conclusive, and that a city is without authority to make such declaration.
It is conceded that the legislature is without authority to prescribe the amount of charges for barbers' services.
It is also insisted that the legislative act in question is in conflict with section 6, Title 22, supra. Section 6 is not a constitutional provision. While under section 89 of the Constitution a city cannot enact an ordinance inconsistent with a state law, there is and can be no legislative restriction on its own power to make an enactment inconsistent with an act previously passed by it. That being the legal status, section 6, supra, should be construed to be a prohibition on municipal enactments to conform to section 89, supra, and does not mean to prohibit legislation inconsistent with it.
So that, the argument that the act of 1939, supra, is inconsistent with section 6, Title 22, is untenable, unless section 6 is an amendment of that act. Section 6, as it now appears, was enacted in 1935, Acts 1935, page 926, as a part of a comprehensive act amending the health laws of the state. That was its last enactment except as a section of the Code. By section 9, Title 1, Code, local acts are not repealed by the adoption of the Code. The local act of 1939, supra, enacted after the act of 1935, supra, was not repealed by section 6, Title 22.
It is next insisted that the act of 1939 violates section 105 of the Constitution, which among other thing prohibits a local law "in any case which is provided for by a general law". It is argued that section 17 of the act contains much that is provided for by general laws: to wit, sections 60, 62, 63, 64, 65, Title 22, Code; that section 12 is covered by section 61, Title 22, Code; section 18 is covered by section 104, Title 22, and that section 5 is covered by sections 70, 71, Title 22.
The effect of section 105, supra, upon such a situation has been often stated to be that it "does not forbid local legislation on subjects not prohibited by section 104, merely because a general law deals with the same matter. If, in the judgment of the Legislature, local needs demand additional or supplemental laws substantially different from the general law, the Legislature has power to so enact." Standard Oil Co. v. Limestone County, 220 Ala. 231, 124 So. 523, 526. And it is not prohibited "merely because such local law is different, and works a partial repeal of the general laws of the State in the territory affected." Talley v. Webster, 225 Ala. 384, 143 So. 555; Johnson v. State ex rel. City of Birmingham, 245 Ala. 499 (3), 17 So.2d 662. Nor "where the object of the local law is to accomplish an end not substantially provided for and effectuated by a general law". Steadman v. Kelly, 250 Ala. 246 (5), 34 So.2d 152, 156. Section 105, supra, makes it the duty of the courts to judge as to whether the matter of said law is provided for by a general law.
It is said in Standard Oil Co. v. Limestone County, supra, that "courts are charged with the duty to determine whether there is a substantial difference between the general and the local law, but cannot invade the legislative domain to determine whether a county should have a local law substantially different and in addition to the state law."
Those features of Title 22, supra, were in the Code of 1923, and included in the general revision of the state health laws enacted in 1935, supra, in the same terms as they now appear in the Code of 1940. So that when the local act in question was enacted the law on the subject was as now set forth in said Code sections, although it was then as revised by the act of 1935, supra.
We will therefore compare the features of the local act with the general law enacted in 1935 (as now set out in the Code) to see if it contravenes section 105 of the Constitution on the theory of our cases construing section 105. We see no substantial difference between section 17(1), Local Acts 1939, page 280, and section 62, Title 22. Section 17(2) does not seem to have a counterpart in the general act. Section 17(3) has a counterpart in section 64, supra. Sections 17(4) and (5) do not seem to have a counterpart in the general act. Section 17(6) has a counterpart in section 60, supra. Section 17(7) is as section 62 in substance. Section 17(8) has no counterpart. Sections 17(9), (10) and (11) are as in section 62, except with more detail. Section 17(12) is as in section 63. Section 17(13) is as in section 65, and section 17(14) has no counterpart.
Section 12 of the local act is an enlargement and addition to section 61, supra. Section 18 of the local act is an enlargement of section 104, supra. Section 5 of the local act is an enlargement of section 70, supra.
In addition to the foregoing features of the local act, it provides for the creation of a county board of barber examiners, consisting of four members, of whom three shall be practicing barbers of certain experience and the fourth shall be the county health officer. The duties and powers of the board are prescribed. They include inspections, examinations and enforcement of the regulations enumerated. There is no general law in this state which provides for a board of barber examiners although there are several local laws to that effect. There does not seem to have been any question raised with respect to those acts as a violation of section 105 of the Constitution. See Local Acts, 1935, page 180; General Acts 1949, page 1036; Couch v. Rodgers, 253 Ala. 533, 45 So.2d 699.
We find that there is a substantial difference between the local law in question as a whole and the general laws on the subject, sufficient to justify the enactment of the local law in the wisdom of the legislature. Also that it is not beyond the police power of the state to protect in that manner the health of its people.
As previously observed, section 11 of the act is by agreement beyond the power of the legislature. But the balance of the act does not seem to impinge on any feature of the Constitution, which has been brought to our attention.
The decree of the circuit court, in equity, should be affirmed.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, § 32, Code, and was adopted by the Court as its opinion.
Affirmed.
LIVINGSTON, C. J., and SIMPSON, GOODWYN and MERRILL, JJ., concur.