State ex rel. Brassell v. Teasley

69 So. 723, 194 Ala. 574, 1915 Ala. LEXIS 257

• Court: Supreme Court of Alabama
• Decided: June 17, 1915
• Status: Published

Opinions

(1) 1. Proposition 1 cannot be approved in view of the apt authority afforded by the decision in Finklea v. Farrish, 160 Ala. 230, 49 South. 366. It was there held that the change wrought, from the Constitution of 1875 in respect of the qualifications or eligibility of persons to hold office, by the Constitution' of 1901 in that regard, “evidenced a purpose to change the policy of the state, to avoid implications adjudged to arise out of such sections (enumerated above in that opinion) in Dorsey’s Case, 7 Port. 293, and in Kents v. Mobile, 120 Ala. 623, 24 South. 952, to have general qualifications for office, other than those enumerated in section 60, to the discretion and determination of the Legislature.” The two cases just referred to in the quotation are those chiefly relied upon to justify the first proposition of the appellant. As seen, they are not authority under the present organic law. There is nothing in the Constitution of 1901 which, directly or indirectly, restricts the right of the Legislature to fix the qualifications to hold the municipal office of city commissioner.

(2) 2. The second proposition of appellant is not tenable, for the reason that section 11 is not within the class called ex post facto laws. There are various definitions of such laws, a number of which are noted in 8 Cyc. p. 1027. We take that set forth in the text as satisfactory, though others are, doubtless, equally as well phrased: “An ex post facto law is one which imposes a punishment for an act which was not punishable when it was committed, imposes additional punishment, or changes the rules of evidence, by which less or different testimony is sufficient to convict.”

The prohibition against the passage of ex post facto laws only applies to- penal or criminal matters. — Calder v. Bull, 3 Dall. 386, 1 L. Ed. 648; Bloodgood v. Cammack, 5 Stew. & P. 276, 280; Aldridge v. Railway Co., 2 Stew. & P. 199, 23 Am. Dec. 307; Washington v. State, 75 Ala. 582, 585, 51 Am. Rep. 479; 8 Cyc. pp. 1028, 1029. Section 11 of the law in question “neither takes away a legal right nor imposes a legal burden, one of which is necessary to- the infliction of a penalty” or the imposition of a punishment. — Washington v. State, 75 Ala. 582, 51 Am. Rep. 479. The Legislature has, as to the municipal office in question, an unrestricted discretion as to what shall be the qualifications for such office. The exercise of this discretion, through an otherwise valid enactment, is not the imposition of a punishment upon the appellant, but the visitation, by the Legislature, of its power to prescribe the qualifications for tenants of the office of city commissioner. The petitioner did not have, nor has he now, any vested or other character of right that would or could be infringed or impaired by the legislative prescription of qualifications for this office that would exclude the petitioner from the privilege of holding the office. — Washington v. State, supra.

(3) 3. The third proposition is rested for authority upon Lindsay v. U. S. Loan, Association, 120 Ala. 156, , 24 South. 171, 42 L. R. A. 783. If that decision has basis for application to the enactment under review it would compel the conclusion there set forth, viz., that a title of an act which manifests no purpose or intent to treat or to affect, in the body of the act, past transactions or to legislate to a “retrospective” effect is not a sufficient compliance with section 45 of the Constitution of 1901 which reads as here pertinent: “Each law shall contain but one subject, which shall be clearly expressed in its title. * * *”

A statement of the subject-matter of the ruling made in that case will demonstrate its complete inapplication to the matter of controversy presented on this appeal. In Jordan v. McClure Co., 170 Ala. 289, 321, 54 South. 415, 424, reference was made to the Lindsay Case, and this cautionary remark was well interposed: “We have no criticism to make of what is said in that opinion about retrospective logrolling and hodgepodge legislation; but it, like all other decisions, should be confined to the cases in hand, or those put in the decisions.”

The case, in the presently pertinent particular, is thus accurately stated by Brickell, C. J. (120 Ala. 171, 172, 24 South. 176 [42 L. R. A. 783]) : “The further insistence of the appellant is that legalizing past transactions —the purging from the taint of usury the particular transactions to which the fifth section refers — is not a subject expressed in the title of the act of which it forms a part, and is offensive, therefore, to the clause” just before quoted from section 45 of the Constitution of 1901. (Italics supplied.)

The Chief Justice proceeds: “The title of the act is of rather peculiar construction. First, as is more usual, general words are 'employed to express the subject. — ‘To regulate the business of building and loan associations in this state.’ These general words are succeeded by an abstract or catalogue of the contents of the act, 'expressive of the matter of each section (except the repealing clause of laws in conflict with the act), descending to the section declaring that the act should take effect immediately on its passage and approval. The part or clause of the title to which the fifth section must be referred — for there is no other to which it cam'be referred- — reads: ‘Defining premiums, fines and stock taken to represent premiums.’ ”

If thus appears that the body of the act (section 5) undertook to validate- — -“to purge from the taint of usury” — past transactions, to render valid contracts already entered into and binding upon the parties before the act was passed, when the only particular feature of the title to which that provision (in section 5) could be referred was in these words: “Defining premiums, fines and stock taken to represent premiums.’ ”

Subsequently, in the opinion, it was expressly ruled (120 Ala. 176, 24 South. 171, 42 L. R. A. 783) that the effect of the body of the act, as there involved, was to have a “retrospective” operation upon “past transactions.” The court, therefore, held that the act (section 5) was partially void, because the title did not comprehend an application of its provisions (section 5) to “past transactions,” and it was condemned (120 Ala. 177, 24 South. 171, 42 L. R. A. 783) “in so far as the past transactions of the association are attempted to be legalized.” It is plain that the subject of the “expository” act (section 5) was a matter in the past only, and that, so far as those past transactions were concerned, it could not operate, in the then present or future, except as an attempt to give a certain legal effect, defined in the act, to contracts already executed, and to thereby change the obligations of the parties‘to contracts already marking and establishing the obligations of the parties.

The act under consideration, as respects its title and the quoted provisions of section 11, is not a retrospective law, as the court found the law to' be in the Lindsay Case. The law there in question could not operate, and patently was not intended to operate, upon any past election for city commissioner in the municipality of Montgomery, by prescribing the qualifications of persons eligible to hold that municipal office under an election to be held in the future. The law (section 11) was obviously only intended to operate, to fix qualifications, in the future; that is, after it became effective as a statute of the state. What section 11 does is to fix, for a future election, a qualification for election to that municipal office — a qualification based upon tenure of the office for “three consecutive years, within, four years immediately preceding the date of election for members of the board of commissioners.” The governmental theory or principle to which this provision may be referable is that given effect in our Constitution in the particulars wherein certain executive officers are restricted to one term; and this upon the notion that the occupant of' such an office may be relieved of any temptation to so conduct or use its functions or opportunities as to contribute to his recommission thereto.

Now as to the title: The particular feature thereof —aside from any other that might be asserted as comprehending the phase of the subject of the act affected by section 11 — is in these words, italicized before herein in the appropriate connection: “ * * - To regulate the selection and election of commissioners. * * * ”, Do these words in the title answer the prescription of section 45 of the Constitution, which requires that “each law shall contain but one subject, which shall be clearly expressed in its title?” In Hubbard v. State, 172 Ala. 377, 55 South. 615, this correct statement was approvingly quoted: “ * * * The title may be so written as to' form an index to the provisions of the body of the act; but if only one subject-matter is the essence of the act, and its provisions are refererable and cognate to the general subject, the constitutional mandate is not violated. In short, the Constitution is not offended if the act has but one general subject, and that is fairly indicated by the title.”

To like effect is the recent case of State ex rel v. Board of Commissioners, 180 Ala. 489, 499, 500, 61 South. 371. There, as here, the first expression in the title was general and comprehensive, that being followed, as here, by subdivisions of the title. It was there said of the subdivision: “The several subdivisions of this title are all germane to one another, and might well have been grouped under the broader subject of highways in Mobile county.”

Here the title’s opening sentence announced the legislative purpose to amend an act entitled “An act to provide and create a commission form of municipal government and to establish same in a.11 cities” of a certain class, and then follows the particular expression with reference to the “selection and-election” of commissionei’s. Manifestly the “selection and election” of commissioners is referable, germane, and cognate to the single subject first mentioned in the title and treated in the body of the act, viz., the provision for creation and establishment of a commission form of government in cities of a certain class.

The case of State ex rel Thomas v. Gunter, 170 Ala. 165, 174, 54 South. 283, 285, is an apt authority upon the question now under consideration. The entire title of that act was this: “An act to make the judge of the city court of Montgomery, and the associate judge of the city court of Montgomery, elective by the people.” — Acts 1907, p. 517.

The act in its body changed the term of the office. This court, without division, ruled as follows (omitting the citation of authorities) : “The next insistence is that the act of 1907 violates section 45 of the Constitution, in that it contains more than one subject, or, if it contains but one subject, it is not clearly expressed in the title. While the act deals with two judges, they are officials of the same court, and are so akin or so closely allied with each other as to be one and the same subject. In dealing with titles to acts, this court has often held that section 45 is complied Avith if the title is single in subject and expression and the details of the law embrace matters relevant and pertinent, or, as is more comprehensively said, germane or cognate, to the title subject. If the object or subject is stated generally in the title, it would include incidents and subsidiary details, and the title in question purports to deal with the selection of judges, and we think the fixing of the term of office, the length of and the commencement of same, is incidental and subsidiary to the subject, as expressed in the title, and which said title was not used in a restrictive sense. * * * The fixing of the term of office of the judges being germane to the subject of selecting them, it matters not whether the term so fixed infringed upon the existing term or not, as the title was sufficient to inform the Legislature and the public that the act provided a new method of selecting the judges of the city, court, and would deal with the terms they were to hold, and, if the terms so fixed would encroach upon existing terms, the title was sufficient to notify all parties at interest that the term of office would be dealt with, and when the new terms would commence, whether before or after the expiration of existing terms. * * * The act in question is unlike the one condemned in the case of Lindsay v. United States Co., 120 Ala. 156, 24 South. 171, 42 L. R. A. 783. The act there sought to legalize past transactions, and was held to be beyond the contemplation of the title, while the title of the act of 1879, and which is quite similar to the present title, was held to be broad enough to cover the appointment and selection of judges, as well as the fixing of the term of office, in the case of Winter v. Sayre [118 Ala. 1, 24 South. 89] supra, and in the opinion by Brickell, C. J., who was the writer also of the opinion in the Lindsay Case, supra. So, too, does the present act find support in the case of Carder v. Price [50 Ala. 568], supra, and which has never been overruled or criticized so far as we have been able to discover.”

Certainly if the title involved in State ex rel. Thomas v. Gunter, supra, was sufficient to comprehend, within the prescription of the Constitution (section 45), legislation materially affecting the term of the office there in question, when the title only referred to the mode of election, the title here, referring as it does to the regulation of the “selection and election” of the commissioners, necessarily comprehends the qualifications or eligibility of persons for election to that municipal office. If the title in the former case was sufficient to justify provisions, in the body of the law, affecting or changing the term of the office, it would seem to be beyond possible question, unless the former decision is to be overruled, that the title here involved'was sufficient to justify, in the body of the law, the prescription of qualifications for those eligible to election to the office.

(4) But it is urged that the law (section 11) is retroactive if it is applicable or is applied to the petitioner in the election to be held in September, 1915, who will have held the office, by appointment for 3 consecutive years immediately preceding that election, and that his unbroken tenure, for or on which he is disqualified by sectiofi 11 to be elected to the office, antedates the enactment by about 2y2 of the 3 years prescribed; and that the title is not fairly susceptible of a construction or interpretation which would accord to it an effect to advise its readers or the lawmakers of an intent to' deal in the act with “past transactions” or past facts. As has been before indicated, we feel certain that section 11 is not a retroactive law. This section visits no punishment. It is not an ex post facto law. It governs a subject, viz., qualification for a municipal office, over which the Legislature has a discretion, not restricted by the Constitution. — Finklea v. Farrish, supra. In determining the qualification, as written in section 11, the lawmakers looked back of the dates of their legislation in this regard, and based a qualification for future eligibility to the office upon a past fact, viz., tenure thereof for the time prescribed immediately preceding the election. That is the doctrine underlying Washington v. State, supra, where even a past conviction of crime was held not to be an improper or invalid reason or ground on which to deny the privilege of the ballot. A striking illustration of the confirmation of the validity of laws which base a rule for future action, or affecting future conduct, even with reference to an honorable profession, upon a past fact, is found in Hawker v. New York, 170 U. S. 189, 18 Sup. Ct. 573, 42 L. Ed. 1002, in which our Washington Case is approvingly cited. There the Supreme Court vindicated a law that even based a disqualification for license to practice a profession upon a past fact; the court giving effect to the view that, unless otherwise restrained, the lawmakers may accept and establish, as a condition to disqualification for license fixed by the enactment, a rule of disqualification predicated of their conception of the evidential effect of past conduct to show that one committing it was not a proper person to practice the profession in question, and this in a case where the person had paid the penalty of the law in effect when he offended. Here the basis of the disqualification is not any moral or legal offense on the part of any one within the terms of section 11. That section must be attributed to a purpose to make a governmental regulation as upon a notion (whether well or ill founded we cannot and do not even consider) that the better public service may be secured by the rule set up by section 11; that this notion should be given effect upon any now in office who are within the terms of section 11. The legislative discretion and judgment has been expressed in section 11, and this court cannot annul it, in such circumstances, without departing from the sphere of its functions and powers.

Unless there is something in the law itself or in the Constitution, which commands or requires an interpretation or construction that would suspend the law or put it into effect, in whole or in part, at a more remote date, it is always held that, after a law is enacted, it is applicable and applies to the first subject-matter upon which it may operate under its terms, thereby giving effect to the intention of the lawmakers. In section 28 it is expressly provided: “'This act shall take effect immediately.” There is nothing in this which would justify the court in holding that section 11 was not operative to fix the qualifications for the office for the election to be held in September, 1915. There is an argument, predicated of the assumed application of the Lindsay Case, that the title was, as respects the provisions of section 11, liable to the charge that “surprise or fraud Upon the Legislature” might have been a result, because the title did not specifically note the fact or rule spo.ken by section 11. This argument is entirely refuted by the fact that the Chief Executive, under and according to the authority of section 125 of the Constitution, formally communicated to the Legislature his dissenting views with respect to the wisdom, propriety, etc., of the provisions of section 11 of this act, and, in accordance therewith, proposed, as he may under section 125 of the organic law, a specific amendment which, if accepted by the lawmakers, would have eliminted the qualification for the office set up in section 11. Notwithstanding this disappoval of section 11 by the Executive, and notwithstanding the amendment he proposed, the Legislature repassed the bill, including section 11, and thereby made it a law. It is certain, under the circumstances stated, that the lawmakers were fully aware that section 11 was what it is.

We see no error in the conclusion given effect by the associate judge in his refusal of.the rule nisi. His order or judgment, therefore, must be affirmed.

Affirmed.

Anderson, C. J., and Gardner and Thomas, JJ., concur. Mayfield, Sayre, and Somerville, JJ., dissent.