Bagby Elevator and Electric Company, Inc. v. McBride

291 So. 2d 306, 292 Ala. 191, 1974 Ala. LEXIS 1046

• Court: Supreme Court of Alabama
• Decided: February 14, 1974
• Docket: SC 204, SC 204X
• Status: Published

Opinions

JONES, Justice.

The constitutionality and applicability, vel non, of Act No. 788, Acts of Alabama, 1969, p. 1418 — Title 7, § 23(1), Code of Alabama, 1940 (Recomp.1958) — are dispositive of this appeal. Act No. 788 provides:

“Be It Enacted by the Legislature of Alabama :

“Section 1. All actions against persons who performed or furnished the design, planning, supervision or construction of improvements on real property, whether based on contract or tort, for damages arising out of any act or omission of such persons in the design, planning, supervision or construction of such improvements, must be commenced within four years after the final completion of such improvements, and not after-wards. Provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than seven years after such act or omission.

“Section 2. The provisions of this Act are severable. If any part of the Act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.

“Section 3. All laws or parts of laws which conflict with this Act are repealed.

“Section 4. This Act shall take effect immediately upon its passage and approval by the Governor, or upon its otherwise becoming law; but it shall apply only to causes of action arising subsequent to the effective date of this Act.

“Approved September 12, 1969.

“Time: 4:57 P.M.”

The pertinent facts are: The final completion of improvements, as contemplated by the Statute, occurred in 1959; the Act became effective September 12, 1969; plaintiff, age 10, was injured November 3, 1969; and suit was filed March 27, 1970.

Appellant, Bagby Elevator and Electric Company, sought to invoke the seven-year provision of the Act by requesting the general affirmative charge. _ The lower court overruled the motion and we affirm.

We first consider the contention advanced by appellee that the Act is unconstitutional as violative of Section 45 of the Alabama Constitution of 1901, which provides :

“The style of the laws of this state shall be: ‘Be it enacted by the legislature of Alabama,’ which need not be repeated, but the act shall be divided into sections for convenience, according to substance, and the sections designated merely by figures. Each law shall contain but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes; and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred, shall be re-enacted and published at length.” (Emphasis added.)

The pertinent portions of this section contain two component parts: First, it limits legislation to a single subject; second, it requires that this single subject be clearly expressed in the title. Thus, a statute such as the one in question may be attacked as violative of either or both of these constitutional admonitions. See 1A Sutherland, Statutes and Statutory Construction, § 18.-07, at 29 (C. Sands ed., 1972). This Court, in dealing with the requirement that the subject be “clearly expressed in the title,” has identified three objectives of Section 45:

“The object of the constitutional provision has been held to be three fold, first, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, and in order that they may have the opportunity of being heard thereon, by petition or otherwise, if they shall so desire; second, truly to inform members of the legislature who are to vote upon the bill, what the subject of it is so that they may not perform that duty, deceived or ignorant of what they are doing; and third, to prevent the practice of embracing in one bill several distinct matters, none of which, perhaps could singly obtain the assent of the legislature, and then procuring its passage by a combination of the minorities in favor of each of the measures, into a majority that will adopt them all. Lindsay v. United States Savings & Loan Ass’n, 120 Ala. 156, 24 So. 171, 42 L.R.A. 783; Walker v. Griffith, 60 Ala. 361.” State v. Hester, 260 Ala. 566, 72 So.2d 61 (1954).

The title to the Act is as follows:

“Act No. 788 H.899 — Hill

“AN ACT

“To regulate further the time within which actions against persons who performed or furnished the design, planning, supervision or construction of improvements on real property, whether, based on contract or tort, for damages arising out of any act or omission of such persons in the design, planning, supervision, or construction of such improvements must be commenced.”

The title seems to indicate rather clearly that the Act to follow is a traditional statute of limitation. That Act No. 788 is not of this type is demonstrably clear from its express wording which establishes a different event to begin the running of the statute — the completion of the improvements rather than the accrual of the cause of action. Furthermore, the appellant points out:

“The courts of Alabama see a distinction between barring the remedy only [i. e., the traditional statute of limitations] as opposed to barring the cause of action. The statute of limitation under consideration here is different from other statutes of limitation in the same chapter of the Code . . . Where the regular or usual statutes of limitations affect only the remedy, the improvement statute affects the right to bring the cause of action or to maintain suit on a cause of action.”

The point is even more forcefully made in the brief submitted by the Alabama Branch, Associated General Contractors of America, appearing as amicus curiae:

“Section 23(1) is not an ordinary statute of limitations. The ordinary statute of limitations begins to run from the date of the completion of the improve-whereas section 23(1) runs from the date of the completion of the improvement. The ordinary statute of limitations affects the time limit in which an action must be commenced. Section 23(1) affects whether a substantive right of action exists at all. It affects substantive rights and duties themselves, and the resulting question of substantive liability. It is not merely a procedural bar to the remedy for a substantive liability.” (Emphasis Added.)

Thus, the issue becomes whether the Act contained one subject which was so “clearly expressed in its title,” as to satisfy the standards set by this Court, i. e., to fairly apprise the people of subjects being considered and to inform members of the legislature so that they may not perform their duty deceived or ignorant of what they are doing. (There is no question of “logrolling”, so the third requirement, of course, does not apply.) There are many cases on this point and the results are varied. This Court has stated that it is difficult to lay down a fixed and definite rule that will mark the line between what is and what is not violative of this Section, Lovejoy v. City of Montgomery, 180 Ala. 473, 61 So. 597 (1913), and that each case must necessarily rest upon its own bottom. Adjudicated cases serve as illustrations only, and are helpful, but are only controlling when they are closely analogous. Spurlock v. J. T. Knight & Son, 246 Ala. 33, 18 So.2d 685 (1944).

Although such closely analogous cases may exist, none has been cited in brief nor has the Court found any. It seems clear, however, that when the title purports to establish a traditional statute of limitations, but the body in fact does something different, not merely in degree but in kind, by declaring, in effect, that no substantive right to bring an action exists 7 years after a certain event, then the subject has not been clearly expressed and the purposes of the title as established by this Court have not been met.¹ Thus, as applied to causes of action accruing more than 7 years after completion of the improvement, the Act, by virtue of its defective title, violates Section 45 of the State Constitution.

The other point of attack on Act No. 788 is that the body of the Act must be limited to one subject. This Court has established a policy of liberality when dealing with Section 45 so as not to hamstring the legislature. An expression of this liberal policy is found in Knight v. West Alabama Environmental Improvement Authority, 287 Ala. 15, 246 So.2d 903 (1971). There it was urged that Sections 3, 8(7) and 8(9), authorizing corporations created under Act No. 1117 to render financial assistance to industries and private corporations, and Section 8(10), authorizing corporations created under the Act to engage in work of watershed improvement, were not expressed in the title of the Act, thus placing the Act in violation of Section 45 of the Alabama Constitution of 1901.

This Court held in Knight that the title expressed a general idea or subject — the study, control, abatement, and prevention of water, air, and general environmental pollution — and that all matters covered in the challenged provision relate to or are cognate to the general subject as expressed by the title. This holding was obviously correct under the established case law and the facts of that case. The sections challenged did relate to the overall subject of the Act. The title is not required to be an index or a table of contents of all the provisions of the Act so long as all provisions do relate to the subject. Of course, if the subject is stated in broad terms, as was the case in Knight then naturally a broader range of provisions will relate to the subject.

The title to Act No. 788, however, is neither general nor broad. To the contrary, the words of the title are specific and narrow in scope: “To regulate further the time within which actions . . . must be commenced.” The title denotes a law dealing merely with a procedural right — a statute of limitations — and not a statute eliminating a substantive right. The last phrase of Section 1 cannot be stretched by the most liberal interpretation to fit the “relate to” test since this seven-year provision in no way relates to the subject matter expressed in the title. The title indicates that the Act is to regulate the time within which an action may be brought, not to eliminate it altogether. The title purports to establish only a statute of limitations as that term is ordinarily employed. By the very words of the title, it is apparent that the Act to follow contemplates that a right of action exists which must be brought within a specified time. Nowhere in the title is there any indication that anything other than a statute of limitations is intended.

However liberal our policy may be in interpreting Section 45, when the Court is certain that the Section is violated, it is mandatory that the offending portion of the Statute be declared unconstitutional. City of Mobile v. Louisville & N. R. Co., 124 Ala. 132, 26 So. 902 (1899). In an extremely well written comment on the type of statute here under review, the following analysis is found:

“The elusive nature of these statutes becomes apparent when those actions ‘accruing’ after the statutory period are considered. In barring actions which have yet to accrue, these statutes are unique, since a statute of limitations proceeds on the theory that a right of action exists, with the limitation defining the period for pursuit of judicial redress. For a statute to bar an action which has not accrued is anomalous; such a statute does not merely limit the remedy, but bars the right of action from ever coming into existence. Once a right of action vests, due process requires that some remedy be afforded, but where the right of action never vests there is no deprivation of property without due process of law. A right of action for a tort which may happen in the future is not property, and may be abrogated by the legislature. The legislatures by enacting these statutes simply abolished all right of action against architects and builders in certain instances. Thus, as to those claims against architects and builders accruing before the statutory period has run, the statutes may act as statutes of limitations, and limit only the remedy. But as to claims accruing after the statutory period has run, the enactments are statutes of limitations in form only, while in essence they are substantive legislative acts defining rights — i. e., that no right of action against the architect or contractor exists at all.” Comment, Limitations of Action Statutes for Architects and Builders — Blueprints for Non-Action, 18 Cath.U.L.Rev. 361 (1969).

The last sentence in the above quote describes Act No. 768. The seven-year clause is clearly not a statute of limitations as applied in this case; it operates as a grant of immunity because its effect is to prohibit the injured person from recovering no matter how diligent he was in pressing his claim. (Here the suit was filed well within six months of the injury and the time the cause of action arose.)

The operation of the seven-year clause as a grant of immunity is even more apparent when such construction is analyzed and pursued to its logical conclusion. Accordingly, this grant of immunity would be instantaneous upon passage of the Act for any improvement over 7 years old. In such event even if a person were injured one day after the statute went into effect, he could not bring an action; whereas, had he been injured one day before, he could have maintained an action. How can such an immediate grant of immunity be equated to a statute of limitations? Clearly it cannot be and just as clearly the Act does have two subjects, only one of which is expressed in the title. As applied in this case, the seven-year provision is a limitation in form only; in substance and effect, it is a grant of immunity — the abolition of a substantive right.

As indicated above, there is a difference in these two aspects of the Act which is more than a matter of degree — it is a difference in kind. Alabama cases bottom a statute of limitations on a policy of repose and they rest on the presumption that meritorious claims will not be allowed to slumber until human testimony is lost or human memory fails. See Howell & Graves v. Curry, 242 Ala. 122, 5 So.2d 105 (1941). The point is well made in the Comment referred to above:

“Limitation of actions statutes implement two basic policies of the law — to promote stability in the affairs of men and to avoid uncertainties and burdens in defending stale claims. The primary concern is fairness to the defendant, who should not be forced to defend when evidence, has been lost, witnesses have died, and memories have faded. The policies are implemented by compelling assertion of legal rights within a reasonable time. A party failing to act within that time forfeits his right to a judicial remedy. Thus, plaintiff’s delay is the traditional justification for the implementation of these policies.

“When applied to those claims arising after the statutory bar takes effect, the architects’ and builders’ statutes squarely conflict with the traditional rule commencing the running of a limitation period at the time plaintiff can first maintain a suit. They vary from the usual statute in that they do not rely upon the justification of plaintiff’s delay. Although this justification often may have been without practical substance, the growing use of a discovery test evidences a legislative and judicial re-evaluation of the type of justice a statute of limitations should afford. Where a limitation bars an action before it accrues, even the.purely legal justification fails.

“Ostensibly, there is little difference, pragmatically, between barring the accrued but unknowable claim and barring an unaccrued right of action altogether. The policy against stale evidence might be asserted as sufficient justification per se in a compelling factual situation and need not depend on plaintiff’s delay. These arguments may warrant abolition of certain unaccrued rights of action in deference to protecting courts from insufficient evidence and protecting defendants' from suits long after their negligent acts. But they do not justify straining statute of limitations theory to the point of absurdity. A limitation affects the time for exercise of a right and cuts off a remedy within some reasonable time after the right comes into existence; using a limitation to abolish a right altogether only serves to devitalize the theory, the policies, and the law of limitation of actions.”

In summary, it is clear that the Act violates Section 45 in two ways: The title does not clearly express the subject of the Act; and the body of the Act in reality contains two subjects — one, a statute of limitations, and the other, a provision abolishing certain rights of action against architects and builders. For these reasons, we hold that the last phrase of Section 1 of the Act (the seven-year provision) is unconstitutional and void. See, e. g., Sweet v. Wilkinson, 252 Ala. 343, 40 So.2d 427 (1949); Ham v. State, 156 Ala. 645, 47 So. 126 (1908); and Mayor, etc. of Ensley v. Cohn; 149 Ala. 316, 42 So. 827 (1907).

Since under the facts of this case the defendant’s request for the general affirmative charge necessarily sought to invoke only the seven-year provision of the Act, we pretermit consideration of the constitutionality of the remaining portion of the Act including its retrospective application.

Affirmed.

FAULKNER, J., concurs. HEFLIN, C. J., concurs specially. HARWOOD, J., with whom BLOOD-WORTH, J., joins, concurs specially. MERRILL, J., with whom COLEMAN, J., joins, dissents. MADDOX, J., with whom McCALL, J., joins, dissents.

1 . For example of a law complying with Section 45 as to this aspect of its title, see Act No. 766, Acts of Alabama, 1953, p. 1027 (Medical Malpractice).