State ex rel. Crenshaw v. Joseph

57 So. 942, 175 Ala. 579, 1911 Ala. LEXIS 428

• Court: Supreme Court of Alabama
• Decided: December 21, 1911
• Status: Published

Opinions

SAYRE, J.

This information in the nature of quo warranto was filed by the appellant Crenshaw, in the name and behalf of the state, aud sought a judicial determination to the effect that defendants were not entitled to hold office as commissioners for the city of Montgomery, as they were assuming to do. By their answer, defendants justified their assumption of official power and functions under an appointment by the Governor, alleging that their said appointment was made in pursuance of the act “to provide and create a commission form of municipal government and to establish same in all. cities of Alabama,” etc.; the same being-shown at pages 289-315 of the printed volume of the General Acts of 1911. The act here referred to provides for a commission of five, to consist of the then mayor and four others to be appointed by the Governor, who should exercise all the powers of the municipal government. The legislative history of this act, as evidenced by the journals of the two houses of the Legislature and the enrolled act on file in the office of the Secretary of State, is the history of an unimpeachable exercise of legislative power, as all parties concede, in every respect save one. At one point, a difference of opinion lias arisen out of facts which, we will here state: House Bill 322, out of which the act in question was developed by a course of legislative action, provided for a commission of three, to consist of the mayor and two others, who should he elected by the people. In this shape, the hill passed both houses and was signed by the Speaker of the House of Representatives and the Lieutenant Governor, presiding officer of the Senate,, on March 22, 1911. The journal of the House next shows that on March 31st, the House being then in session, “the House concurred in and adopted the amendment offered by the Governor to the H. Bill 323, said Governor’s amendment being as follows;” and here the amendment, which provided, among other things, for a commission of five, is set out at length. The Governor’s message bears date March 31, 1911, and was spread upon the journal in pui’suance of the Constitution (section 125), 'which requires in such cases that the House in which the hill originated, and to which it is returned, “shall enter the objections at large upon the journal and proceed to reconsider” the bill. In the meantime, as the journals show, the Legislature, on March 22d, adjourned to the 24th, and on the 24th to the 29th, and on the 29th to the 31st. Of intervening days, March 26th fell on Sunday. The appellant’s contention is that, under the Constitution, the bill became a law in its original shape by reason of the Governor’s failure to sign or return the same, with the amendments of his proposal to the House of Representatives, within six days, and that what further was done with the bill is of no consequence, as being wholly without the power of the Legislature. ■

So much of the Constitution as is necessarily involved in the decision of the question presented reads as follows: “Every bill which shall have passed both houses of the Legislature, except as otherwise provided in the Constitution, shall he presented to the Governor; if he approve, he shall sign it; but if not, he shall return it with his objections to the house in which it originated, which shall enter the objection at large upon the journal and proceed to reconsider it. * * * If any bill shall not be returned by the Governor within six days, Sunday excepted, after it shall have been presented, the same shall become a law in like manner as if he had signed it, unless the Legislature, by its adjournment, prevent the return, it which case it shall not be a law; but when return is prevented by recess, such bill must be returned to the house in which it originated within two days after the reassembling, otherwise it shall become a law.” The authorities are unanimous in holding that the adjournment of the Legislature contemplated in the quoted clause of the Constitution is a final adjournment. It seems necessary, also, to hold that the limit of time during the session — that is, where there has been no final adjournment — within Avhich the Governor shall return a bill in order to prevent it becoming a law without his approval and signature, or, perhaps, it would better express the intent of the provision to say the period of time during which the Governor has the right to consider a bill without its becoming a law independently of him, must be measured by calendar days; for otherwise there would be no reason for excepting Sunday, on which day it is not the practice of legislative bodies in this country to sit for the business of legislation. When occasionally Legislatures have found it convenient or necessary to extend their sessions over into Sunday, it has been treated as an extension of tlxe previous clay. But the sixth must be a legislative day also; for the Governor has six days in which he may consider the bill, and the requirement is that the bill, in case it be not approved, be returned to the house in which it originated. No congregation of the members of a house can, in a constitutional sense, constitute the House during the period of a recess, or exercise any of its constitutional functions. Nor can the return be made to any officer of the House when it is not in session. As was aptly said by Governor Jones in a message to the Senate in 1893: “A message from the executive to either branch of the Legislature, delivered to an officer of the body, who may not even be a member, and when it is not in session, for transmission and delivery to ‘the House’ when it shall reconvene, is an anomaly in parliamentary law. Messages from the executive to either branch of the General Assembly are invariably delivered to the House while in session, and not to the officers for them. Such has been the immemorial-usage, and the same custom obtains concerning messages from one house to the other.' There is neither parliamentary nor statute law which confers any functions upon the secretary or clerk of either house, while they are in recess, concerning the reception of messages from the other house or from the executive. Parliamentary law absolutely divorces clerks and secretaries from such functions, and is so exacting in this regard that one house will not receive a message from the other if the house sending the message is not in session. Indeed, it would seem that the express language of the Constitution, which requires the return ‘to the House,’ would repeal any parliamentary or statute law or custom, if such had obtained, whereby the return might he made to the clerk or secretary of the House, while it was not in session, for delivery to it when it reconvenes.” — Sen. Jour. 1892-93, 304-310. Like considerations, and others arising out of the fact that during the period of a recess the Governor may find it exceedingly inconvenient, if not impossible, to communicate with the presiding officers of the houses, not to mention the element of unseemliness which may find its way into such an effort, lead to the conclusion that a bill may not be returned to the Speaker of the House or the presiding officer of the Senate in recess. So, then, a bill must- be returned to the House while in session,, which is to say that the sixth and last day during which the Governor may retain a bill without its becoming a law, if he sees fit to exercise his right of examination to the utmost, must be a legislative day. We conclude, also, that if the house in which a bill originated is in session on the sixth day after a bill has been presented to the Governor, so that the Governor has then an opportunity to return the bill, and there is a failure to return it, his constitutional right to return is exhausted. Any other rule would lead to the result that, with the daily passage of bills originating in either house, the limitation of time would be ineffectual, unless the Legislature should each clay remain in session until the last minute of the day — a result not contemplated, of course. But where a return is prevented by recess — an adjournment, not final, .but for more than a day — the two days after the reassembling in which the bill may be returned must of necessity be legislative days. On one the house reassembles as an organized body; on the other the bill may be returned to the house so organized.

Relator offered to show by a memorandum made at the time upon the bill by the Governor’s recording secretary, and by other parol proof, that the bill reached the Governor’s office and was delivered into the hand of his recording secretary on March 22d, and that this was the customary way of dealing with bills. The bill is not traced directly to the Governor’s hand or notice before the 31st, the day on which he returned it to the House. If these facts constituted a presentation to the Governor, within the meaning of the Constitution, and if no rule of law or imperative policy, such as has always prevailed in cases of the character and in view of which the Constitution may be regarded as having been framed, stood in the way of a resort to parol evidence of them, then consideration of the dates to which we have referred, in connection Avith the interpretation given already to the clauses of the Constitution in question, must result in a judgment denying the validity of the act under which the respondents are holding office:

Cases have been cited from other jurisdictions to sustain the appellant’s contention that the presentation shown by the memorandum was a presentation to the Governor. In Wrede v. Richardson, 77 Ohio St. 182, 82 N. E. 1072, 122 Am. St. Rep. 498, the ruling was that an entry in a record which Avas kept in the office of the Governor, pursuant to a requirement of law, and with his acquiescence used to perpetuate evidence of the presentation to him of bills which had been passed by the General Assembly, Avas competent and sufficient to prove such presentation. In State v. Michel, 52 La. Ann. 936, 27 South. 565, 49 L. R. A. 218, 78 Am. St. Rep. 364, it appears that the Constitution of Louisiana con-' tains an imperative provision that, “as soon as bills are signed by the Speaker of the House and President of the Senate, they shall be taken at once, and on the same day, to the Governor by the clerk of the House of Representatives, or secretary of the Senate,” and the validity of the act there in question was submitted to the court on an agreed statement of fact Avhich stipulated the day of its presentation to the governor. The bill having been presented to the Governor between 10 and 11 o’clock at night, and the Governor having refused to receive it at that hour, the question litigated was whether such a tender of the bill was a constitutional presentation of it, and whether the fact that the Governor declined then to receive it rendered that presentation nugatory and ineffective. We have no doubt the question was properly decided against the Governor’s contentions. So, too, in Harpending v. Haight, 39 Cal. 189, 2 Am. Rep. 432, the case was made upon agreed facts which stipulated that on a certain day the bill was, by the enrolling committee of the Senate, delivered to the Governor for his consideration. No question was raised concerning the fact of presentation; whether the Senate, by adjournment, had prevented a return, and whether the court had jurisdiction to compel the Governor, by mandamus, to cause the bill to be authenticated as a statute, are questions which constitute the entire subject-matter of the opinion. The same is true of State v. South Norwalk, 77 Conn. 257, 58 Atl. 759. The court in that case took occasion to say that “it [a bill] cannot be deemed to have been presented to him [the Governor] until it has been in some way put into his custody, or into that of some one properly representing him, in such manner that he has a reasonable opportunity to inspect and consider it,” citing Opinions of the Justices, 99 Mass. 636. The court further said, “Due provision was made, shortly after the adoption of the Constitution, for such attendance on The Governor, or the person administering the office of Governor,’ as might serve to secure his proper representation at the executive offices during the sessions of the General Assembly,” citing the statutes of Connecticut. The case of Soldiers’ Voting Bill, 45 N. H. 608, decided by the Supreme Court of New Hampshire in 1864, holds with the appellant on this point. In that case it was “assumed to be established” that the bill was “carried by the assistant clerk of the Senate to the executive chamber, in the state house, in accordance with the customary mode of presenting bills to the Governor, and was laid upon the table of the Governor, who was then absent from the room, but who had been there during the morning, and was expected to return that afternoon, but did not; that when said bill was thus laid upon the Governor’s table some members of the executive council were present, and also Mr. Barrett, the State Auditor, who was the son-in-law of the Governor, and who had a table there in the executive chamber for the transaction of his business, near that of the Governor; that the assistant clerk of the Senate, when he entered the executive chamber with said bill, announced that he had a bill for the Governor.” The Governor saw the bill on the next day, and the point at issue was whether there had been a presentation when the bill-was laid upon the Governor’s table. In brief, the conclusion that the bill had been presented when laid upon the Governor’s table was rested upon the absurdity of requiring the officers of the Legislature, in order to perform their duty, “to follow the Governor wherever he may chance to go, whether in the state or out of it, upon his private business as well as public, and present bills to him in person wherever lie may happen to be.”' The clear effect of the decision was that the bill must be deposited in the usual place, and the attention of the Governor, secretary, or other person in charge of the room called to the fact. What different effect was given to the presence of members of the executive council with whom, under the Constitution of New Hampshire, the Governor Avas required, from time to time, “to hold a council for ordering and directing’ the affairs of the state, according to the laws of the land,” or to the presence of the Governor’s son-in-law, or whether the janitor would not have served the purpose as well, does not appear. At any rate, the case would seem to permit the authority of legislative acts to rest upon a very uncertain basis. Our OAvn case of State v. Porter, 145 Ala. 541, 40 South. 144, is also relied upon. That case dreAV into question the right of commissioners, appointed by the Governor, to hold an election to locate a county seat under the act of March 3, 1903. — Gen. Acts 1903, p. 117. The act provided for the appointment of commissioners AAdienever a majority of the qualified electors of a county should “petition the Governor in writing.” Relator relied upon a petition of Avithdrawal. Justice Anderson said: “The law provides that the petition must be presented to the GoA^ernor, meaning that it must be lodged with him or his official force in some formal manner, so as to become an official document. And section 2 (page 119) of the act requires ■the Secretary of State to furnish a copy of said petition to the county site commissioners Avhen he issues to them their commissions. Thus it must be observed that this original petition must get within the actual custody and control of the GoArernor. It therefore stands to reason that, in order for any of the signers to AvitlidraAV therefrom, they must do so with a degree of formality corresponding with that contemplated by the bnv in presenting the original petition.” And it was held that a AvithdraAval petition, presented to Gapt. Sedberry, who had been sent by the Governor to Cleburne county to investigate the bona fides of the original petition, but Avhich neA'er in fact reached the Governor’s hands, Avas of no avail. Clearly that case rested upon considerations Avhich have no place in the case at hand; for there no question of legislative procedure was involved. Per contra to the rule in New Hampshire, in Massachusetts, in a case where the Governor was out of the state when a hill passed the Legislature, the Supreme Judicial Court reasoned that as, the duty of revisal by the Governor was a personal duty, with which he alone was intrusted, it was necessary that the bill should he laid before him personally; that the Governor, whose duty it was to sign the bill, was entitled to have it before him, that he might have the opportunity to sign or return it with his objections. In this state, we have no constitutional or statutory provision requiring the presentation to be made to the Governor within any fixed time, nor any requiring an official record of such presentation to be kept. There is therefore no presumption of duty discharged by other officials to set over against the presumption that the Governor has observed the law, nor any record required by law to be kept, on which to place a finding that the bill was presented to the Governor more than six days before its return to . the House. What effect the practice of subordinate officers of the two houses to present bills to the Governor’s recording secretary and of the Governor’s acquiescence in that practice should have in determining the sufficiency of such presentation may be left where we find it, with the apparent weight of reason and authority opposed to appellant’s contention; for at some time prior to its return to the House the Governor took cognizance of the bill. The unavoidable question is whether parol evidence should have been received to show the point of time at which presentation was made, and this we have decided upon considerations which will be stated.

Attentive regard for the authorities and the reasons suggested pro and con has convinced us that, whatever parol evidence may have been available to appellant in support of his contention as to the fact, and hoAvever cogent that evidence may seem to the mind unconstrained by the rules of Iuav and those considerations of vital policy obtaining Avith the courts whenever they come to the task of passing upon the constitutional validity of the acts of the co-ordinate Legislature, Ave aré concluded by the legislative record of the law in question and the presumptions arising out of that record in favor of its constitutional enactment.

No view can be entertained Avhich avouIcI cast the least doubt upon the court’s complete acceptance of the doctrine that the mandates of the Constitution are the supíneme Iuav to all departments of the government, or the court’s readiness to enforce the supreme Iuav by declaring a legislate act invalid, where that fact is made to appear by competent evidence. But in this case the journals of the two houses and the enrolled bill, signed by the Governor and lodged Avith the Secretary of State for promulgation as laAv, present the official history of one continuous dealing with one bill, House Bill 323. On its face, the record is that of a statute valid in every particular of its enactment. The Constitution requires that each house shall keep a journal of its proceedings, and of the record thus made the courts take judicial cognizance. — Moody v. State, 48 Ala. 118, 17 Am. Rep. 28; Montgomery Beer Bottling Works v. Gaston, 126 Ala. 425, 28 South. 497, 51 L. R. A. 396, 85 Am. St. Rep. 42. And the decisions of this court have settled the proposition: “That in determining whether a bill enrolled, signed by the president of the Senate and the Speaker of the House of Representatives, and approved by the Governor, Avas in fact regularly and constitutionally enacted in all its provisions, and contains all the provisions which were enacted by the General Assembly, recourse can be had only to the bill itself as so enrolled, signed, and approved, and to the journals of the two houses of the Assembly. The bill itself, wrought by such enrollment, signatures, and approval into an apparently valid enactment of the legislative department of the government, is a record of its own existence and integrity, in many jurisdictions constituting the only record to be looked to, and carries with it a presumption that it is tbe bill wbicb tbe two bouses concurred in passing; and this presumption can only be overcome by tbe contrary being made to affirmatively appear from that other record, tbe journals — tbe bound volumes of tbe proceedings transcribed, and signed by tbe presiding officers and deposited with and kept by tbe Secretary of State — of tbe respective bouses of tbe General Assembly.” — Robertson v. State, 130 Ala. 169, 30 South. 494. And in Ex parte Howard-Harrison Company, 119 Ala. 484, 24 South. 516, 72 Am. St. Rep. 928, the language of tbe court is: “No other evidence is admissible. Tbe journals can neither be contradicted nor amplified by loose memoranda made by clerical officers of thé bouses. Nor avüI it be presumed from tbe silence of tbe journals on a matter of which it is proper for them to speak that either bouse has disregarded a constitutional requirement in tbe passage of an act, except in those cases where tbe organic law expressly re: quires tbe journals to show the action taken, as where it requires the yeas and nays to be entered.” But appellant says it is tbe elementary duty of tbe court to know tbe statute law of the state, though judicial knowledge is not tbe personal knowledge of tbe judge, and for that reason be has tbe right to resort to any source of information which in its nature is capable of conveying to tbe judicial mind clear and satisfactory information, and it is urged that, since tbe relator stood ready to furnish evidence for informing the judicial knowledge, of greater moral -weight than the mere presumption which arise in favor of the observance by the Legislature and the Governor of constitutional mandates, and to the effect that those mandates were not observed in fact, the court cannot avoid knowing that in fact the Governor did retain the bill for more than six days after it had been presented to him without signing it, and that thus it became law in its original shape. It is to be conceded that there may be cases in which the courts must enter into aliunde investigations as to the existence of a statute, or as to the time when it received executive approval by signing, or as to the time when it became law without such approval (Walker v. Griffith, 60 Ala. 367; Gardner v. Collector, 6 Wall. 499, 18 L. Ed. 890), though, to paraphrase the language of Judge Miller in the last-named case, we should reasonably expect to find a duty so. very important as that of making some official written statement as to when a bill is presented to the executive, and when signed by him, the neglect of which may be followed by the most serious consequences prescribed by some positive and express provision of the Constitution, or, at least, by some act of the Legislature. The court would repudiate any record or any part of any record which depends upon forgery or other unlawful interpolation for its semblance of law, and such forgery or interpolation might be proved to the court as in the case of any other instrument which the court- is bound to know; and where the Constitution requires, as a condition to the validity of a statute, that certain facts in respect to its legislative history must appear upon the journals, the court gives effect to the supreme law by declaring void a statute with a defective record; and where two irreconciliable laws are approved on the same day, or rights may depend upon the exact date of an approval which is not denied, nothing appearing in that respect, necessarily evidence is taken to make certain a fact otherwise at large. Here the case is different. Appellant does not deny the integrity of the record of the act under which defendants claim; nor does he claim that it is required by any rule of Constitution or statute to show more than it does. As before said, the statute in its last shape is perfect in its appearance, so far as concerns the regularity of its enactment; and its genealogy shows no break. The record history of the bill does not end with its first pasasge through the Legislature. It is resumed at a later day in the journals of the two houses, that of the House of Representatives showing that the bill was returned without approval, and with the proposal of amendments which would meet the Governor’s objections. Subsequent dealing with the bill, down to and including the Governor’s approval of it in its last shape, is admitted to have been perfectly regular, if the return was made in time. Appellant would impeach the effect of the record of the bill in its last shape by evidence in pais of a fact, concerning which a proper record is required to show nothing, contrary to what was the necessary finding of the Governor and the Legislature. This on a comprehensive theory that judicial knowledge must embrace every act of every official concerned in any way in the business of passing laws. Now, when the bill went- back to the Legislature, it was within both the power and duty of that body to know whether the bill had become a law by reason of the Governor’s failure to return it within the time limited by the Constitution, thus foreclosing all right to deal with the subject-matter except by a new bill, or whether the legislation thereby proposed was still in fieri and subject to amendment. Its power to proceed depended upon a question of fact which its sworn duty required it to decide, and which it was competent to decide, and which it did decide, thereby establishing, by necessary inference, the fact in accord with the implication of the Governor’s return. On such a record, the presumption is conclusive that the facts were consistent with the legislative assumption of power. The principle here applied is set forth in the case of United States v. Arredondo, 6 Pet. 691-729 (8 L. Ed. 547), in these words: “It is a universal principle that, where power or jurisdiction is delegated to any public officer or tribunal over a subject-matter, and its exercise is confided to his or their discretion, the acts so done are binding and valid as to the subject-matter, and individual rights will not be disturbed collaterally for anything done in the exercise of that discretion within ■the authority and power conferred. The only questions which can arise between an individual claiming a right under the acts done and the public, or any person denying its validity, are power in the officer and fraud in the party. All other questions are settled by the decision made or the act done by the tribunal or officer, whether executive ([Marbury v. Madison] 1 Cranch, 170, 171 [2 L. Ed. 60]), legislative ([McCulloch v. Maryland] 4 Wheat, 423 [4 L. Ed. 579]; [Satterlee v. Matthewson] 2 Pet. 412 [7 L. Ed. 458]; [Craig v. Missouri] 4 Pet. 563 [7 L. Ed. 903]), judicial ([Perkins v. Fairfield] 11 Mass. 227; [McPherson v. Cunliff] 11 Serg. & R. [Pa.] 429 [14 Am. Dec. 642], adopted in [Thompson v. Tolmie] 2 Pet. 167, 168 [7 L. Ed. 381]), or special ([Rogers v. Bradshaw] 20 Johns. [N. Y.] 739, 740; 2 Dow. P. Cas. 521, etc.), unless an appeal is provided for, or other revision, by some appellate or supervisory tribunal, is prescribed by law.” The rule here stated confines judicial knowledge to the record, where the record is authentic and complete in itself.

This rule is based upon practical considerations of the utmost importance. It Avould lead to intolerable conditions if the validity of statutes, evidenced in every way provided for authentication by the common law, by the Constitution, and by statutes made to that end, and under which the affairs of individuals and communities may have been long administered, were permitted to depend upon the precarious memory of witnesses and the uncertainties of parol proof. It is clear that if one of the steps necessarily involved in the enactment of a law, and not required by the Constitution to be affirmatively shown, or for the-due exposition of which no law has been made, may be shown by evidence in pais not to have been taken, or not to have been taken properly, on the theory that the court knows all such things, “the entire subject of what the law is is withdrawn from the protection of the rules devised and applied for the purpose of securing certainty where doubt would be intolerable. The prompt aversion of the legal mind from the consideration of evidence in pais to shoAV the invalidity of an officially promulgated statute is justified by a contemplation of the consequences which would follow.” — Wrede v. Richardson, supra. Our conclusion that the trial court properly refused to receive the testimony offered by the relator in impeachment of the act, and that the memorandum stamped by the recording secretary upon the bill as first enrolled is of no consequence, to the extent, at least, it is inconsistent with the course of the Legislature, which treated it as untrue in fact, is required by the necessities of organized society, and is sustained by the weight of well-considered authorities in those states where these and closely allied questions have been carried to the courts for decision. — People v. McCullough, 210 Ill. 488, 71 N. E. 602; Wrede v. Richardson, supra; Danielly v. Cabaniss, 52 Ga. 211; Sherman v. Story, 30 Cal. 274, 89 Am. Dec. 93; Rumsey v. People, 19 N. Y. 41; State ex rel. Reed v. Jones, 6 Wash. 450, 30 Pac. 201, 23 L. R. A. 340, and note; Stevenson v. Colgan, 91 Cal. 649, 27 Pac. 1089, 14 L. R. A. 459, and note, 25 Am. St. Rep. 230.

At its last session, the Legislature passed four different acts on the subject of commission government for municipalities in this state. On March 31st, the Governor approved an act providing for the appointment of commissioners in all cities now having, or which may hereafter have, a population of as much as 100,000 according to the last federal census, or any such census which may hereafter be taken. — Gen. Acts 1911, p. 204. We judicially know that this act applied at this time to the city of Birmingham alone. On April 6th an act was approved, providing for a commission in cities now having, or which may hereafter have, a population of as much as 25,000 and less than 50,000 according to the last census.-^Gen. Acts, p. 289. This act applies to the city of Montgomery alone, as populations now are. April 8th an act was approved for the government by commission of cities and towns which, to quote the act, “now are not, or hereafter may not be, within the influence or operation of any other valid legislative enactment authorizing or adopting the commission form of government.” — Gen. Acts 1911, p. 330. Under this act, a commission for the city of Mobile has been organized, and a commission for any other town or city in the state, except Birmingham and Montgomery, might have been organized but for the passage, on April 21st, of an act providing for government by commissioners in all cities now having, or which may hereafter have, a population of more than 1,000 and not more than 25,000.- — ■ Gen. Acts 1911, p. 591. The effect of this- last enactment was to leave the city of Mobile as the only city in the state which might adopt the commission form of government, as provided in the act of April 8th, and the government of that" city has been organized under that act. • These acts differ much in detail; but the one broad pujóse common to them is to abolish the government of municipalities by mayors and boards of aldermen, and to substitute therefor a board of commissioners to be elected generally by the people, but in all cases, save those provided for in the act of April 8th, the first board of commissioners was to be appointed by the Governor. In the case of cities falling within the operation of the acts of April 8th and 21st, it is provided that a vote of the people be first taken to ascertain whether they -desire a change in the form of government. By the acts of March 31st and April 6th, no opportunity is given for an expression of the popular will; but the appointment of commissioners in the first place is made mandatory upon the Governor. On these acts and the differences to be noted in their provisions, some only of which have been mentioned, appellant bases an argument that the act -of April 6th is unconstitutional as being a local act. If the act is local it is unconstitutional. It will be observed that these acts, taken together, arrange the cities and towns of the states into four classes: (1) Cities and towns having a population between 1,000 and 25,000; (2) those between 25,000 and-50,000; (3) those between 50,000 and 100,000; and those of 100,000 and over. And provision is made by which cities shift from one class to another as their populations change. The Constitution does not pro-' Mbit classification on substantial grounds; and this court lias recognified differences in population as a proper basis for tbe classification of municipal corporations. — Griffin v. Drennen, 145 Ala. 128, 40 South. 1016. But in State v. Weakley, 153 Ala. 648, 45 South. 175, ruling here, too, in accord with the authorities generally, it is held that indiscriminate classification as a mere pretext for the enactment of laws essentially local or special cannot be allowed. The argument for appellant is that there are no essential differences between cities of these different classes, such as call for differences in the regulation of their municipal powers and local government; and, further, that these four acts are in pari materia, and must be construed as one act, and that, Avhen considered so and in connection Avith Avell-knoAvn agitations of public opinion going on at the time, it is apparent that the purpose was to legislate to meet local conditions and demands, rather than to frame a code of laws applicable to all cities similarly situated. It is our duty to sustain these acts, unless it is clear, beyond a reasonable doubt, that they violate some proAdsion of the fundamental law. The argument against them presents a novel application of the doctrine of construing statutes in pari materia. To link a number of separate acts together, each unobjectionable in itself, for the purpose of destroying all or any of them, would, so far as we are advised, be without precedent. We think rather that each of these acts is to be judged on its merits as they appear in the act itself. Classification by numbers having been recognized as legitimate, it must be a task of great difficulty to say just AArhen the Legislature has overstepped the bounds of its poAver in arranging a classification on that basis. And Avhile onr knoAAdedge, in an undefined and irresponsible way, of conditions and opinions operating upon the Legislature at the time of these acts may be such as to create suspicion that the effort was to provide differently for each of the three largest cities of the state on consideration of local demands, not based on essential differences of situation or the real interests of their inhabitants, we cannot look beyond the act itself for motives. A case might occur in which this basis of classification might be pushed so far that the court would be required to pronounce it unconstitutional. The Supreme Court of Pennsylvania, whose decisions on this subject we have followed, found such a case in Ayar’s Appeal, 122 Pa. 266, 16 Atl. 356, 2 L. R. A. 577; but we think that condition is not sufficiently demon-stated by this statute. In form, at least, the act is not open to the objection taken to it. The range of numbers in the class in which the city of Montgomery falls is fairly large; and we are unable to say with perfect assurance that the Legislature may not have found differences between cities of this class and others having-populations- of less than 25,000 or more than 50,000 which justified differences in organization and local regulation. While not disposed to encourage this character of legislation, we cannot in this case say it transcends the constitutional power of the Legislature, and so are constrained to withhold interference.

Our conclusion is that the judgment of the court below must be affirmed.

Affirmed.

Mayfield and Somerville, JJ., concur. Dowdell, O. -L, not sitting.