Alabama State Bridge Corporation v. Smith

116 So. 695, 217 Ala. 311, 1928 Ala. LEXIS 512

• Court: Supreme Court of Alabama
• Decided: March 22, 1928
• Docket: 3 Div. 828.
• Status: Published

Opinions

The corporation provided for by the act is not a private corporation, but a public institution. The Legislature had power to create same. White v. Ala. Insane Hospital, 138 Ala. 479,35 So. 454; Trustees v. Winston, 5 Stew. P. 17; Wolf v. Underwood, 91 Ala. 523, 8 So. 774; 12 C. J. 1031; 14 C. J. 72; State v. Board of Regents of U. of Kansas, 55 Kan. 389, 40 P. 656, 29 L.R.A. 378. Sections 104 (6) (20) and 229 of the Constitution apply to private corporations. City of Ensley v. Simpson,166 Ala. 366, 52 So. 61; Ex parte City Council, 64 Ala. 467. The act deals with the organization of an institution to function in the public interest, a governmental institution; no private interests of any kind are granted or to be subserved. It is a general law, not a private law within sections 104 and 110 of the Constitution. State ex rel. v. Sayre, 142 Ala. 641,39 So. 240, 4 Ann. Cas. 656. The act does not violate section 93 or amendments thereto, nor articles XX, XXA. In re Opinion of the Justices, 209 Ala. 593, 96 So. 487; Kasch v. Miller, 104 Ohio St. 281,135 N.E. 813. The subject-matter of the act is clearly expressed in its title, and section 45 is not violated. State ex rel. v. Griffin, 132 Ala. 47, 31 So. 112; State v. Street,117 Ala. 203, 23 So. 807; Williams v. Board of Rev., 123 Ala. 432,26 So. 346. The powers of the Legislature are supreme, unless inhibited by the Constitution; and, since its power to construct and maintain highways and bridges is not prohibited, the Legislature had the power to enact the act in question. Dyer v. Tuskaloosa Bridge Co., 2 Port. 296, 27 Am. Dec. 655; Harrell v. Ellsworth, 17 Ala. 576; White v. Ala. Insane Hospital, 138 Ala. 479, 35 So. 454. It was permissible for the Legislature to delegate the administrative authority to locate bridges, rather than specifically name the locations itself. Parke v. Bradley, 204 Ala. 455, 86 So. 28. It is the court's duty to uphold the statute, unless it clearly appears to be unconstitutional. Byrd v. State, 212 Ala. 266, 102 So. 223; Fairhope Corp. v. Melville, 193 Ala. 289, 69 So. 466; State v. Joseph, 175 Ala. 579, 57 So. 942, Ann. Cas. 1914D, 248; State v. Birmingham So. R. Co., 182 Ala. 475, 62 So. 77, Ann. Cas. 1915D, 436.

Arthur B. Chilton, of Montgomery, for appellee.

G. W. L. Smith, of Brewton, amicus curiæ.

The act contains more than one subject in the title and in the body thereof, and is in violation of section 45 of the Constitution. Ex parte Pollard, 40 Ala. 99; A. G. S. v. Reed,124 Ala. 253, 27 So. 19, 82 Am. St. Rep. 166; Builders' Co. v. Lucas Co., 119 Ala. 202, 24 So. 416; Birmingham Min. Co. v. Tuscaloosa County, 137 Ala. 260, 34 So. 951; State v. So. Ry. Co., 115 Ala. 250, 22 So. 589; Mobile v. L. N. R. Co.,124 Ala. 132, 26 So. 902. The original purpose of the act was to amend the general corporation laws of the state, but it was so amended on its passage as to make it a law chartering a special corporation. This rendered it invalid. Const. §§ 61, 111. The act undertakes to pass a special, private, or local law on the subjects enumerated in subdivisions 5, 6, 15, 19, 20, 25, and 27 of section 104 of the Constitution. Thomas v. State, 13 Ala. App. 429,69 So. 413; City Bank Trust Co. v. State, 172 Ala. 197,55 So. 511. A local law is void if the same relief could be had under the general law. Const. § 105; McWhorter v. Lowndes County, 167 Ala. 370, 52 So. 750. See Acts 1927, p. 348; Code 1923, §§ 1347-1369, 6442, 6754, 6964-7220; Id., §§ 1046-2426. No notice of intention to apply for passage of the act was given as required by section 106. The act is special under section 110 of the Constitution. State v. Sayre, 142 Ala. 641,39 So. 240, 4 Ann. Cas. 656; Holt v. Mayor, 111 Ala. 369,19 So. 735; Wallace v. Board, 140 Ala. 491, 37 So. 321. The act is in violation of section 229, forbidding the conferring of corporate powers by special act. Ala. City R. Co. v. Kyle,202 Ala. 552, 81 So. 54; City of Ensley v. Simpson, 166 Ala. 366,52 So. 61. The Legislature shall not have power to require counties or other municipal corporations to pay any charges which are now payable out of the state treasury, Const. § 118; nor to authorize any county, city, or town to lend its credit or grant public money to any corporation, section 94. Rogers v. White, 14 Ala. App. 482, 70 So. 994; So. R. Co. v. Hartshorne,162 Ala. 491, 50 So. 139; Jarrott v. Moberly, Fed. Cas. No. 7,223, 6 Dill. 253. Sections 72, 91, 211, 212, 213, and 214 are violated by the act. The state is prohibited from lending its credit to any corporation. Const. § 93, as amended; Tuskegee v. Macon County, 190 Ala. 631, 67 So. 394; Montgomery County v. Montgomery, 190 Ala. 366, 67 So. 311; Jefferson County v. Birmingham, 172 Ala. 154, 54 So. 757. Proceeding in his right as citizen and taxpayer, appellee by his bill in this cause sought to enjoin an issue of bonds by the Alabama State Bridge Corporation under authority of the act of August 31, 1927 (Acts 1927, p. 278), entitled an "Act to provide for and authorize an incorporation by the Alabama highway director, the president of the state board of administration of Alabama and the chairman of the state tax commission of Alabama, for the purpose of constructing or causing to be constructed bridges and the approaches, for public use, on, or connecting highways in this state," etc. The bill avers that the act in question is unconstitutional and void, and this view found approval in the trial court where a demurrer assigning many grounds was overruled. From that ruling the bridge corporation takes this appeal.

The act is sui generis, and has provoked many objections to its constitutional validity which we have considered in the order of their presentation in the most elaborate of the two briefs filed on behalf of appellee.

In the first place, it is said that the act is offensive to section 45 of the Constitution, which requires that "each law shall contain but one subject, which shall be clearly expressed in its title." The main and inclusive subject of the act, as expressed in its title, is to create a corporation for the purpose of constructing bridges for public use on the highways of this state, and that subject is expressed with sufficient clearness in that part of the title quoted in the outset of this opinion. In the brief catalogue or index of the powers is found a statement of powers and duties, all of which are germane to the main subject and purpose of the act. In the body of the bill is found, as was to be expected, a statement of powers and duties much more in detail. In the leading case of Ballentyne v. Wickersham,75 Ala. 533, it was held that, while the clause in question is mandatory, its requirements are not to be exactingly enforced, or in such manner as to cripple legislation, and that, when the subject is expressed in general terms, as is the case in that part of the title quoted above, the Constitution is satisfied, if all that follows is referable and cognate to the subject so expressed. "It is sufficient if the things regulated or forbidden in the body of the act fall within the generic purpose expressed in the title, and relate to it." State v. Stripling, 113 Ala. 120, 21 So. 409, 36 L.R.A. 81; Benners v. State, 124 Ala. 97, 26 So. 942. Scores of cases to the same general effect might be cited. Many of them may be found cited and briefly stated in the editorial note under section 45 in Mayfield's "Constitutions of Alabama." Grounds of objection to the act (Acts 1927, pp. 278-284) under this head are well-nigh as numerous as are its separable provisions. Each of them has had due consideration, whereupon it is the judgment of the court that everything in the catalogue or index of the title or in the body of the act may fairly be referred to that inclusive general title which has been quoted above (Alford v. State,170 Ala. 218, 54 So. 213, Ann. Cas. 1912C, 1093); that there are no unrelated or incongruous provisions, nor any that by reasonable intendment may not be considered as necessarily or properly connected therewith in the effort to frame a statute to carry into effect the general purpose indicated by the title; and, therefore, that there is no offense against section 45 of the Constitution.

It is suggested that in the passage of the act section 61 of the Constitution has been violated. The section referred to is:

"No law shall be passed except by bill, and no bill shall be so altered or amended on its passage through either house as to change its original purpose."

In this connection we have considered section 111 of the Constitution, which provides that:

"No bill introduced as a general law in either house of the Legislature shall be so amended on its passage as to become a special, private or local law."

We do not find in the act or its official legislative history, i. e., the journals of the two houses — to which, in this connection we must refer (Fourment v. State, 155 Ala. 109,46 So. 266) — sufficient material on which to base approval of the objections here in question. The purpose all along was to provide for the building of bridges on, or in connection with, the highways of the state. The legislative journals show, and the act in its final shape affords, an inference to the same effect, that the bill introduced evidenced a purpose to amend the general corporation laws by providing for the incorporation of appellant in order that it might construct bridges at fifteen designated points in various parts of the state, but that the act issued from the legislative process as an act to provide specifically for the creation of appellant corporation which shall have authority to erect fifteen bridges at points to be located by the highway commission. It will be conceded that, if the bill in its original shape would have operated in any true sense to amend the general corporation laws of the state, it could not have been passed, because section 229 of the Constitution, in relevant part, commands that "the Legislature shall pass no special act conferring corporate powers." But, if the act had preserved the form of the bill as it was on its introduction, the result would have been an act the constitutional equivalent of the act in its final shape.

The original proposal to amend involved a misnomer, as the title and the body of the act proposed and the act in its final shape all show. The legal effect of the act first proposed, if its then shape had been preserved, would have been to provide for the creation of the same corporation that is provided for by the act in its present shape, with this difference: The bill definitely located the fifteen bridges to be constructed at fifteen designated places, as for example, "1. In Wilcox county, between Camden and Linden, Marengo county," whereas the act now provides, as stated above, that the fifteen bridges should be located by the highway commission. Such an act as that proposed would not have offended against section 229 of the Constitution because that section has reference to private corporations. In Ensley v. Simpson, 166 Ala. 366, 52 So. 61, we directed attention to the fact that in the official copy of the Constitution, on file in the office of the secretary of state, section 229 is grouped under the subhead "Private Corporations," and held that, if there had been reason for previous doubt as to the meaning and application of the section, such doubt was relieved by the arrangement shown in the original copy of the Constitution.

The act as it now appears and the act as first proposed, notwithstanding its designation as an amendment in its first form, undertakes, and undertook in the first place, to create a public corporation for public purposes with which section 229 of the Constitution has nothing to do. The corporation authorized — and we take the authority to be in substance a command — is not intended as a private agency. It has no capital stock. No profit or other advantage is to be realized for the personal benefit of its members, who are officers of the state and ex officio members of the corporation. It is intended to put into use and operation public funds and agencies of the state for the common benefit of the people of the state. It would construct bridges for the public use and, in the end, free to the public. It is an arm of the state, with none of the limitations, disabilities, or responsibilities that affect private corporations as such. The act creating the corporation was and is, so far as concerns the objections heretofore stated, a valid exercise of legislative power.

Nor did the change as to the location of the fifteen bridges to be constructed work a change in the general purpose of the act. The bill in its original form would, and the act in its present shape does, invoke and witness the legislative will to provide for the execution of a general public purpose, and the result is a general law as defined by section 110 of the Constitution.

Section 218 of the Constitution provides:

"The Legislature shall not have the power to require counties or other municipal corporations to pay any charges which are now payable out of the state treasury,"

— and it is alleged in the brief for appellee that the act violates that section. The act provides that:

"As soon as any of the bridges herein authorized are put in operation. * * * The corporation is hereby given authority to contract with the board of revenue, court of county commissioners, or like governing body of any county in which a bridge may be constructed under the provisions of this act, for said county to pay annually a sum of money to be agreed upon by the corporation and said county authority; said sum of money to be in lieu of all toll for residents of said county; said sum of money to be paid only so long as the named bridge is under toll."

The language of the act purports to confer authority; no contribution is required. But the act does discriminate for or against some counties, for fifteen bridges cannot be located in 67 counties, and, for that reason, the idea seems to be, the act is a local act, according to the definition of the Constitution (section 110). In so far as the quoted provision of the act would help the construction and maintenance of bridges on the highways of the state, that is, as parts of such highways, whether in one place or another — and that, clearly enough, is its main, if not its sole, purpose, and that may be its effect — the act is a general law; but, in so far as it intends to confer a benefit on the residents of those counties in which bridges may be located, or, if a different manner of statement be preferred, in so far as it authorizes counties within the named class to assume the burden of contributing to the fund for the maintenance of bridges or for the payment of interest charges, it is partial in its operation, it is to be admitted, but is not on that account to be denounced as having been passed in disregard of the constitutional prohibition against the enactment of local laws without publication, as provided in section 106. It is clear that the requirement of publication of the purpose to apply for the passage of the law "in the county or counties where the matter or thing to be affected may be situated," that is, in the counties where bridges under the act are to be located, would deny the possibility of such legislation, since those counties could not be authoritatively located in advance of the enactment of the law; but this consideration only tends to reinforce the conclusion that the act is general because its controlling purpose is general, and the provision just here in question is a mere incident. State v. Pitts, 160 Ala. 133, 49 So. 441, 686, 135 Am. St. Rep. 79.

It is suggested that the act is in violation of section 94 of the Constitution. This objection is obviated by the consideration that the section relates to private corporations only. Garland v. Board of Revenue, 87 Ala. 223, 6 So. 402.

Objections on account of sections 91, 211, 212, and 214 of the Constitution are not well taken. The bridges, if any, to be constructed under this act will belong to the state. They may be exempted from the payment of taxes, and this is true, notwithstanding the lien of the mortgage bonds, if any, to be sold under the authorization of the act may be foreclosed and the properties pass temporarily, that is, until the debt incurred in building is paid by tolls into the hands of private persons or corporations. Time enough to consider the effect of that eventuality when the occasion arises, for then, if ever, the question will be whether the purchaser shall pay taxes, as to which the act says nothing. But the answer to that question cannot, we think, make for or against the constitutionality of the act. As for the other objections taken in this connection: The fixation and collection of tolls is not the levy or collection of taxes, and the constitutional requirement that taxes shall be levied uniformly and according to value is foreign to any purpose or permit of the act.

The objection taken in connection with section 99 of the Constitution is sufficiently answered by the fact that the act neither contemplates nor provides for any donations or sale of land belonging to, or under the control of, the state. The act provides security for the lenders of money with which to build bridges; but security, though it may result in vesting the right to collect tolls for a time in the event of foreclosure, cannot be correctly termed a donation or sale.

Section 213 of the Constitution is made the basis of an objection to the act. This section provides that "no new debt shall be created against, or incurred by this state," with exceptions and prescriptions of no relevancy to any provisions of the act. The act pledges the right to collect tolls until borrowed money shall be repaid, and "the residue of the receipts from the gasoline tax collected by the state under the Excise Gas Tax Act approved January 25, 1927, and known as the Gasoline Tax Act (Acts 1927, p. 16 et seq.), after there has been taken from that fund the amount necessary to meet all the primary purposes to which said gas tax fund is pledged under article 20A as an amendment to the Constitution of the state (see Acts Sp. Sess. 1927, p. 794), and as provided for in section 10 of the act approved January 25, 1927; or the interest may be paid out of the net receipts from the convict department, as authorized by amendment to section 93 of the Constitution, declared by proclamation on November 17, 1908 (which, we note, had been superseded by the broader terms of the revision of 1922); or the interest may be paid out of any funds in the treasury as authorized by the amendment to section 93 of the Constitution, as set out above." Our judgment is that "debt," within the meaning, the purview, the whole content, of the constitutional provision, is that which the state in any event is bound to pay, an obligation secured by the general faith and credit of the state. Bonds that may be issued for the construction of bridges under this act will not evidence such an obligation — will not be so secured. The surplus of several funds pledged in the first place for the security of bonds, the proceeds of which have, or will have, been used for other designated purposes or of funds devoted to other specified purposes — these surplus funds, along with the right to collect tolls, are pledged for the security of bonds to be negotiated for the building of bridges. If these special funds should for any reason fail of realization, or should be exhausted in execution of the primary purposes for which they may be raised, nothing will be left to creditors advancing money on the faith of the bonds authorized but the right to collect tolls. There is no promise on the part of the state to pay in any event; there is no pledge that there will be a surplus of any fund; there is no pledge of the general credit of the state; there will be no debt within the meaning of section 213.

The moneys remaining as surplus, if any, will be in the treasury of the state, and such surplus, to the extent necessary to pay interest on the bonds authorized, is by the act appropriated to the payment of interest on the bridge bonds, and the provision is that payments shall be made on the requisition of the bridge corporation, approved by the Governor, and by warrants drawn by the state auditor. In all this we find no violation of section 72 of the Constitution.

By constitutional amendment proposed in the act to be found on page 740 of the Acts of 1907, and subsequently, in 1908, adopted by a vote of the people, section 93 of the Constitution was amended so as to permit the net proceeds from the state convict fund to be applied to the construction, repair, and maintenance of public roads, and additional appropriations might be made for that purpose. In 1921 section 93 was again amended. Acts 1921, p. 1; In re Opinions of the Justices,209 Ala. 600, 96 So. 487. This amendment authorized, inter alia, the legislative appropriation of funds for the construction, repair, and maintenance of public roads, highways, and bridges in the state. In 1927, article 20A was added to the Constitution whereby the state was "authorized to engage in the construction, improvement, repair and maintenance of public roads, highways and bridges." See Acts 1927, p. 794. In view of these several amendments it cannot in reason be said that the act in question violates the Constitution by permitting the state to engage in works of internal improvement, or otherwise. By these amendments the state definitely embarked upon a program of internal improvement. True, Amendment 20A created a sinking fund to be derived from the levy of an excise of two cents a gallon upon gasoline, and to be used for the "prompt and faithful payment of the principal and interest on these bonds [bonds authorized by the amendment] and for the construction, maintenance and improvement of such public highways, roads and bridges [trunk roads and roads connecting county seats]." Whether the bridges authorized by the act now under consideration will be so located as to form a part of the roads contemplated by the amendment remains to be seen. How the gasoline tax fund will be allocated as between the sinking fund and the bridge funds authorized by this act remains to be seen. What the necessities of the sinking fund may be considered to require, and so whether anything be left for these bridge bond payments, remains to be seen. Purchasers of the bonds will need to take a chance as to these surplus funds, if tolls be not considered security enough, but that does not affect the constitutionality of the act, which in no wise depends upon the wisdom of its provisions.

The court does not find sufficient reason for declaring the act in question to be in conflict with any provision of the Constitution. It follows that the judgment must be reversed.

Reversed and remanded.

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

SOMERVILLE, THOMAS, and BROWN, JJ., dissent.

BOULDIN, J., not sitting.

BRICKEN, P. J., of the Court of Appeals, having been appointed by the Governor according to the provision of section 10274 of the Code, concurs in the opinion of SAYRE, J.