State ex rel. Porter v. Crook

126 Ala. 600

Opinion

TYSON, J.

The two acts passed by the General Assembly during its sessions of 1898-99—'one approved November-30, 3898 (Acts 1898-99, p. 8) entitled an act, “To provide for the permanent location of -the county site of Calhoun county by a vote -of the qualified electors of -said county;” the other, approved February 1, 3899 (lb. p. 494) entitled an act “To amend an act, entitled ‘An act to provide for the permanent location of the county site of Calhoun -county, by a vote of the qualified electors -of -said 'county,’ approved November 30, 3898”—embody all the provisions necessary for the making of a choice between the two places named in the acts, to wit, Anniston and Jacksonville, as the site for the county court house of Calhoun county by an election 'to he held thereunder. To particularize, they provide for the ordering of the. election by a hoard of commissioners named, at which persons are to be allowed to vote possessing certain qualifications therein specified, notice of the time and the purpose for which the election is to be held, to be given by this board of commissioners, the appointment by the board of registrars, inspectors, clerks and returning officers, the registration of voters, the opening and closing of the polls, the places where the election is to be held, the canvass by the board at the court house in Jacksonville on a designated day of the vote cast and a certificate by the commissioners who compose the board in writing of the result of the election to be filed and recorded in the office of the judge of probata They also prescribe the duties of the registrars, inspectors, clerks and returning officers, the oaths -to be administered to each of these officers and, as we have said, the qualifications of the electors Which is expressed in an oath to he administered by the registrar to. each elector, to be subscribed by such elector, before registering. In short, the entire machinery for the holding of the election is expressly provided in detail in these acts themselves, without resort having to he had to any other law in force regulating elections. Indeed, all legislative intention that the general laws'regulating elections to be held in the State, is conclusively excluded by the fact that the whole conduct and management of the election and the ascertainment of the result is entrusted to the hoard of commissioners who are in no way connected with the conduct and management of elections under the general laws. Not a member of this board is an officer of the State or ».f the county of Calhoun upon whom is devolved the duty of an election officer under the general statutes.

Objections are taken to these acts upon grounds involving their constitutionality, and, really, these objections constitute and present the only questions for consideration. Instead of garnering them out of the allegations of the petition for ourselves, we will state them,• substantially, as they are.set out in appellant’s counsel’s argument.

1. The provisions of the acts requiring inspectors to number each ballot Avith the number to correspond with the number opposite the elector’s name on the poll list, violate section 2 of Art. VIII of the constitution which ordains that “All elections by the people shall be by ballot, and all elections by persons in a representative capacity shall be viva voce.”

2. The provisions of the act in reference to registration, by express and penal terms exclude certain classes of qualified electors in violation of Section 1 of Art. VIII of the constitution.

3. The act being entirely at variance with the existing election laws of the State, and being confined in its operation to one county, contravenes section 5 of Art. VIII of the constitution which provides: “The general assembly, shall pass laws, inconsistent with this constitution, to regulate and govern elections in this State, and all such laws shall be uniform 'throughout the State.”

4. The body of the act varies from the caption, in that it excludes certain classes and descriptions of qualified electors, by express and penal provisions, and thus violates Section 2 of Art. IV of the Constitution providing that “Each law shall contain but one subject, which shall be clearly expressed in its title.”

It is urged in support of the three first’bbjections that the act requires the numbering of the ballot, thereby destroying its secrecy, that the system of registration provided by it disfranchises some persons who ‘are otherwise entitled to exercise the privilege of the electoral franchise conferred by Article VIII of the Constitution, and the method of voting and the scheme of the conduct and certification thereof is entirely variant from the existing election laws of the State. All this may be conceded for the purposes of this case and yet it does not follow that the act is subject to the objections. It might well be doubted whether the provisions of Art. VIII of the Constitution which relate exclusively to suffrage and elections, have reference to any election by the people other than those held to elect public officers. Hanna v. Young, 34 L. R. A. (Md.) 55 and authorities cited. It is unnecessary, however, to decide this question. The subject matter of the act finder consideration was clearly one within the power of the legislature, without limitations or restraint to deal with.—7 Am. & Eng. Ency. of Law (2d. ed.) pp. 1019, 1020 and notes. It could have directed the court house to be re moved from Jacksonville to Anniston by simply ordering it to be done. Or it could have directed the commissioners named in the act to ascertain the wishes of or choice of the inhabitants of the two towns including the women and children or of the inhabitants of the entire county by petition, by personal intervieivs, by ballot, or otherwise, and npon certification of their findings of the result the site should be the one so ascertained by them to be the selection of a majority of those inhabitants who expressed their choice. In other words, the legislature had the right to adopt any method it chose to ascertain the wishes of those with whom it desired to consult in the locating of the court house at the one or the other of the two places. It was under no-obligation to consult any one or to confer with any one; but there is no obstacle to its doing so, if it desired, and as to those whose opinions it wished to have-expressed upon the subject of which of the -two place» should be the county site, it clearly had the right to-designate them, without reference to whether they were-qualified electors under the Constitution or electors at all. In the language of Chief Justice Walker, in Ex parte Hill, 10 Ala. 121: “The validity of a statute cam never depend upon the antecedent consultation of the people by the legislature, nor upon tlie affording to-them an opportunity to express their sentiments through petitions. The removal of the court house of a county, and its permanent location, is indisputably a permissible exercise of legislative authority. This authority it may exercise without consulting the people of the county, through the ballot, or otherwise; and if it chooses to select two places, and leave the choice between them to popular vote, if is the manifestation of a deference to public opinion, which is not demanded by the Constitution.” If it is not demanded by the Constitution, then no elector who derives lii-s right of franchise from the provisions of the Constitution, can complain that his right of 'suffrage is abridged or otherwise impaired by the act which does not afford him the opportunity to express his choice. He was not invited by the legislature to consult with it, and he cannot force his advice or opinion upon it without its consent. It is a matter which concerns only those whom the legisla ture voluntarily invited to assist it in making the choice. The legislature by adopting the method of ascertaining*, the choice, by ballot, of those whom it desired to consult, cannot be held to be hound to include every person who may be entitled to vote at a popular election under the Constitution or to exclude thosé whose advice it sought, from expressing their choice, because excluded by the Constitution from the exercise of the electoral franchise at a popular election. To hold otherwise, wmuld he to destroy the plenary, >and otherwise unlimited and unrestricted authority of the legislature; to'fetter and handicap it in dealing with a matter, forsooth, because it required the choice by ballot, when it was not required to consult any one and when it was clearly within its competency to provide any method it sees proper to adopt for a manifestation of the sentiment of those persons it desires to consult. The contention of appellant would destroy the right of the General Assembly to submit any matter to the choice Of the people by ballot, except to those persons who are qualified electors under . the constitution, and,even to a portion, who do not constitute the entire voting population of a county. In other wards, the electors of a heat or a number of beats could not be consulted by ballot. Under this rule all laws providing for -local option, stock districts, etc., depending upon a vote of a majority of the electors of- the district, would he invalid, notwithstanding there is no constitutional limitation upon the right of the legislature to submit these matters to the freeholders or any other persons residing in the district to be affected by the lawr—a right which has often been exercised and recognized as legitimate enactments.

Under the Constitution of 1819, which was in force until the adoption of the Constitution of 1865, every white male person of the age of twenty-one years or upwards, who was a citizen of the United States and shall have resided in this State one year next preceding an election and the last three months within the county, city or town, in which he offered to vote, was a qualified elector, etc. While this constitutional provision was in force, the act of the legislature, which by its several sections provided that before the corporation of the city of Mobile should he entitled to levy the special tax provided in the act, an election should be held in said city at which none should be allowed to vote, except the owners of freehold estates in said city or tenants under lease for a term of five years and upwards- and guardians who represented estates of wards, and required the concurrence of three-fifths of the votes polled, in favor of the tax, was passed, and its 'constitutionality assailed and upheld in the case of Stein v. The Mayor et al., 24 Ala. 591, 612, 613. See also Gibbons v. Mobile, 36 Ala. 410.

It is clear to our minds that these objections are not well founded.—Ex parte Hill, 40 Ala. 121; Clarke v. Jack, 60 Ala. 271; Leigh v. The State, 69 Ala. 261; Moulton v. Reid, 54 Ala. 320; McCraw v. County Commissioners of Greene County, 87 Ala. 407; Stanfil v. Court of County Rev. of Dallas County, 80 Ala. 287; 6 Am. & Eng. Ency. Law (2d. ed.) pp. 1024, 1025 and notes; Mobley v. Police Jury, 41 La. Ann. 821; Bew v. The State, 71 Miss. 1; Plummer v. Yost, 144 Ill. 68.

The numerous eases cited in appellant’s brief to sustain his contention, in seeming conflict with the views we here express, are based upon constitutional limitations of the authority of the legislature of those States to order a removal or a selection of a county site without first submitting the question of removal or selection to the electors of the county. The case of Gandy v. The State, in 82 Ala. 61, is not in conflict with what we have' said. All that was held in that case, upon the point under consideration, was that the general penal statute was broad enough in its language to embrace any election held in this State, whether under the general or a special law. The election may he a legal one under a special law authorizing it, there being no constitutional inhibition against the passage of such a law, although it is- not such an election, as is contemplated by Art. VIII of the Constitution.

The remaining question is tin; one raised by the objection to the title of the act. It will be well to observe, before entering upon a consideration of this question, that the general statutes providing for and regulating elections apply only to elections of public officers and not to elections to- be held of the character of -the one provided by the act under consideration.—§§ 1556 to 1703 of Code; Clarke v. Jack, supra; Leigh v. The State, supra. Also to note that ¡the electors qualified by the act to vote in the election to be held under it, are also qualified electors under the Constitution and ■general laws. The point taken is that the act excludes •certain persons qualified under the Constitution and general statutes to vote in popular elections. We have not, then, the oase where the effect of the act is broader than its title, but, according to appellant’s contention, a case where the provisions of the act are narrower than the ordinarily accepted meaning of some of the words in the title.

It cannot be said that the title contains more than one -subject. For it needs no argument to show that the words “of the qualified electors of said county” when read in connection with the words which precede them, “to provide for the permanent location of the •county site of Calhoun county by a vote” are germane •to the subject expressed and are expressive -of a part of the means to be employed to a full -accomplishment of the purposes sought, to wit: “To provide for the permanent location of the county site of Calhoun county.” As said in State v. Street, 117 Ala. 208, and quoted approvingly in A. G. S. R. R. Co. v. Reed, 124 Ala. 253; 27 So. Rep. 10, “When the title of an act expresses but one general -subject, and all its provisions are allied to the subject expressed or, as is usually said, germane or cognate to it, all the purposes of the limitation are satisfied. 'This is the real test in each particular case: When the title expresses one general subject, however broad and ■comprehensive the subject may be, whether the act includes provisions which by no fair intendment can be •considered as having connection or relation to the subject expressed.” Or, as said in Ex parte Pollard. 40 Ala. 99, “The question must always be, whether, taking from the title the subject, we can find anything in the bill which cannot be referred to that subject. If we do, the law embraces a subject not described in the title. But this conclusion 'Should never be attained, except by argument characterized by liberality of -construction and freedom from all nice verbal criticism.”

But it is said that we cannot look to the language employed in the body of the act to ascertain the meaning of the words employed in the title. The contention suggests these questions: How, in any case, could the court ever determine that the act -contains more than one subject, where only one is expressed in the title? How would the court ever determine that any foreign matter had been injected into the body of the act, incongruous to the subject expressed in the title? What process or means is to be resorted to in determining whether a matter in an act is germane to the general subject expressed in its title? In truth, a comparison. of the provisions of the act and the title, is Hie only way by which these questions can be solved. Indeed, should the title contain two subjects and the body of the act only one, that which is expressed in the title, but not contained in the law may be rejected as surplusage.—Judson v. The City of Bessemer, 87 Ala. 242; Gandy v. The State, 86 Ala. 20; Thomas v. The State, 124 Ala. 48. An examination of the body of the act and the title must be made together, the one with reference to the other, for the purpose of determining the variance between them in- order to be apprised as to whether the title is deceptive. Won constat, the provisions of the act may follow to the letter all inferences to be deduced from the language of the title in the minutest detail.

But to go back to the position contended for in this case, which, in its last analysis, is, that the words “qualified electors” as used in -the title must be held to be referable to those persons Who are electors under the Constitution and statutes of the 'State; that this is the sense in Avhich they would he understood to be used by the members of the General Assembly when the title to the act is read, and therefore the General Assembly and the public were misled by those words into the belief that the bill or act provided that all persons residing in Calhoun county entitled under the Constitution and general laws to vote would be permitted to do so, whereas it excluded a certain class of them by the system of registration, etc., provided for in- the act. If they stood alone they would mean “persons who are legally qualified to vote.”-—Bouv. Law Die. 800. And doubtless if they were used in connection with the subject matter to which the Constitution and the statutes ait large regulating the right of suffrage are applicable, the contention would be sound. But they are not used in connection with a subject matter as we have shown with which Art. VIII of the Constitution has anything to do. They 'are distinctly, unqualifiedly and inseparably associated with the subject of the location of a county site for Calhoun county, the subject matter of the enactment over which the General Assembly, as we have shown, had the right to deal without restriction or limitation and the unqualified right to provide the qualifications of all persons who should by the act be permitted to vote at the election to be held under- it. They must be construed in connection with the language with which they are associated. The entire language of the title of the act must be considered and taken into consideration when we undertake the interpretation of these words. When construed, in connection with the subject with Which they are associated and the unlimited authority of the General Assembly over that subject, and bearing in mind that the Constitution and the statutes conferring and regulating the electoral franchise in popular elections have no application to an election to be held for the location of a county site, the words “qualified electors” in the title, must be'referable only to those who are qualified by the provisions of the act. .

Affirmed.

McClellan, C. J., and Haralson, J., dissenting on the last point.