Cleveland v. StateCleveland v. State
In thе absence of assignments of error, no error can be considered except one of jurisdiction.
Appeal from Circuit Court, Elmore County; Leon McCord, Judge.
Action between R. H. Hays and Lucinda Walker and others. From the judgment, Hays appeals. Affirmed.
T. G. Hilyer, of Tallassee, for appellant. F. W. Lull, of Wetumpka, for appellees.
SAMFORD, J. There are no assignments of error, and under the rule and the decisions, no error can be considered, except one of jurisdiction. The trial court had jurisdiction, and the judgment is affirmed.
Affirmed.
Under
2. HIGHWAYS wkey 122—REPEAL OF CODE SECTIONS ADOPTED IN STATUTE BY REFERENCE.
Certain Code sections imposing the duty to perform service in maintaining the public roads, having been by reference adopted in the act to provide a better system of public roads for Blount county, approved February 27, 1907 (Loc. Acts 1907, p. 272), as amended by act approved April 7, 1911 (Loc. Aсts 1911, p. 221), were not, as so adopted and embodied, repealed by their repeal as part of the general law by Gen. Acts 1915, p. 623.
Appeal from Circuit Court, Blount County; J. E. Blackwood, Judge.
Grover Cleveland was prosecuted for failure to perform road duty, and appeals from adverse judgment. Reversed and remanded.
Russell & Johnson, of Oneonta, for appellant. P. Loyd Tate, Atty. Gen., and Emmett S. Thigpen, Asst. Atty. Gen., for the State.
Certification of Questions to Supreme Court.
We hereby certify that in disposing of this case, it is necessary to determine whether or not the act entitled “An act to provide a better system of public roads for Blount county,” approved August 28, 1915 (Loc. Acts 1915, pp. 184-190), was constitutionally enacted, the specific question presented being whether or nоt the notice in the following words:
“Notice is hereby given that the following bills will be introduced in the next Legislature:
“A road law, requiring eight days’ work or the payment of $5, money to be paid to an authorized person under bond in each precinct, the road to be worked by contract or district foremen under bond, by direction of the commissioners’ court.
“A law requiring members of сommissioners’ court to give bond.
“A law to abolish the county treasurer‘s office”
—and found on the legislative journals (House Journal, p. 1752; Senate Journal, p. 2153), is a sufficient compliance with the provisions of
This question is respectfully certified for dеtermination by the Supreme Court, as required by the act creating the Court of Appeals, and for the convenience of the Supreme Court a copy of the opinion оf the Court of Appeals is hereto appended. This the 17th day of January, 1918.
Response of Supreme Court.
SOMERVILLE, J. The Court of Appeals certifies to this court for determination the following question: Was “An act to prоvide a better system of public roads for Blount county,” approved August 28, 1915 (Local Acts 1915, pp. 184-190), enacted in conformity with the requirements of
This section requires that notice of intention to apply for the passage of a local law shall be published in the county where the matter or thing to be affected is situated, and that such notice shall “state the substance of the proposed law.” The notice given in this case was for “a road law, requiring eight days’ work or the payment of $5, money to be paid to an authorized person under bond in each precinct, the road to be worked by contract or district foremen, under bond, by direction of the commissioners’ court.”
[1] It requires neither argument nor au
Let this opinion be certified to the Court of Appeals. All the Justicеs concur.
Opinion of Court of Appeals.
BROWN, P. J. The questions determinative of this appeal are: First, whether or not the act entitled “An act to provide a better system of public roads for Blount county,” approved February 27, 1907, as amended by subsequent act approved April 7, 1911, is repealed by the act carrying the same title, approved August 28, 1915 (Local Acts 1915, pp. 184-190); and, second, if the аct first above referred to was not repealed by the local act of 1915, whether its repeal was effected by the act approved September 20, 1915 (General Aсts 1915, p. 623), repealing certain sections of the Code imposing the duty to perform service in maintaining the public roads.
The appellant insists that
“Notice is hereby given that the following bills will be introduced in the next Legislature:
“A road law, requiring eight days’ work or the payment of $5, monеy to be paid to an authorized person under bond in each precinct, the road to be worked by contract or district foremen under bond, by direction of the commissioners’ сourt.
“A law requiring members of commissioners’ courts to give bond.
“A law to abolish the county treasurer‘s office.” (House Journal, p. 1752; Senate Journal, p. 2153.)
—does not state the substance оf the proposed law. When this notice is read in connection with the bill offered, and which was subsequently enacted and approved (Local Acts 1915, pp. 184-190), we entertain the оpinion that this contention of appellant must be sustained. Wallace v. Jefferson County, 140 Ala. 491, 37 South. 321; Walker v. State, 142 Ala. 7, 39 South. 242; Elba v. Rhodes, 142 Ala. 689, 38 South. 807; State v. Williams, 143 Ala. 501, 39 South. 276; Alford v. Hicks, 142 Ala. 355, 38 South. 752; Lloyd v. State, ante, p. 145, 75 South. 821.
The act of 1907, as amended by that of 1911, provides:
“That all male citizens of said county subject to road duty under the general laws of Alabama, shall be subject to road duty in said county and shall work on the public roads thereof, four days in each year.”
This statute is complete in and of itself, and by reference adopts the provision of the general law of the state defining liability to road duty.
“In the construction of such statutes, the statute referred to, is considered, treated and as if it were incorporated into, and formed part of that which makes the reference. * * * The two statutes coexist as separate and distinct legislative enactments, each having its appointed sphere of actiоn; and the alteration, change, or repeal of the one, does not operate upon or affect the other.” Phœnix Assurance Co. v. Fire Department, 117 Ala. 631, 23 South. 843, 42 L. R. A. 468; Savage v. Wallace, 165 Ala. 575, 51 South. 605; Beason v. Shaw, 148 Ala. 546, 42 South. 611, 18 L. R. A. (N. S.) 566; Darrington v. State, 162 Ala. 63, 50 South. 396; Sloss-Sheffield S. & I. Co. v. Smith, 175 Ala. 265, 57 South. 29; State v. Lamar, 5 Ala. App. 259, 59 South. 737; Lewis Sutherland, Statutory Construction (2d Ed.) § 257.
[2] It results that the repeal of the general law, as embodied in the sections of the Code referred to in the General Act of September 20, 1915, did not operate to repeal those sections of the Code as adopted and embodied in the local acts of 1907 and 1911, and the court of county commissioners was without authority, under the provisions of the act approved September 22, 1915, known as thе Goode law (Acts 1915, p. 573), to establish, promulgate, or enforce rules and regulations inconsistent with the provisions of the local law in force in Blount county. The Goode law provides that the court of county commissioners may establish, promulgate, and enforce rules and regulations, make and enter into such contracts as may be deemed necessary or advisable by such court or board, to build, construct, make, improve, and maintain a good system of public roads, bridges, and ferries in their respective counties, and regulatе the use thereof, etc. Provided, however, that nothing in this act shall be construed to authorize the court of county commissioners, board of revenue, or other like governing bodies of the several counties to establish, promulgate, or enforce any rules, regulations, or laws which may be in conflict with local or special laws providing for the working, maintenance, change, discontinuance, or improvement of the public roads, bridges, or ferries of such county, now in force or which may hereafter be enacted.
It appearing from the agreed statement of facts on which this case was tried that the defendant had fully performed road duty as required by the Local Acts of 1911, the judgment of the circuit court must be reversed and one here rendered discharging the defendant.
Reversed and rendered.