91 So. 627
Ala. Ct. App.
1920
SAMFORD, J.

This suit was instituted by appellant pursuant to the provisions of an act of the Legislature approved February 17, 1919 (Acts 1919, pp. 111-116), amendatory of an act of the Legislature approved September 28, 1915 (Acts 1915, p. 898 et seq.), and seeks to recover of appellee a percentage of appellee’s gross premiums from its business in the city of Montgomery during the year. 1919; it being contended that this payment is provided for by subdivision C of section 8 of the original act, requiring each fire insurance company doing business in the city to pay annually into a certain fund “a sum equal to % of 1 per cent, of the gross premiums, less returned premiums received by such fire insurance company for and on account of business done by it in said city during the preceding year.”

*208 On tie trial the defendant (appellee here) filed demurrer to tie complaint attacking tie constitutionality of tie act. Tie demurrers were sustained, and, • plaintiff declining to plead furtier, judgment was rendered against him, and tie action of tie court is now assigned as error.

[1,2] It first becomes necessary to pass upon tie act -of tie Legislature of 1915, upon which is based tie amendatory act of 1919, as no life can be given to a dead act, by simply amending certain of its provisions at a later session of tie Legislature. If tie act of 1915 is unconstitutional and void, then tie act of 1919 must of necessity be likewise void and of no effect. Citing tie case of Reynolds, Treas., v. Collier, 204 Ala. 38, 85 South. 465, appellee insists tiat tie act of 1915 applied in its provisions only to tie city of Birmingham, wiici made it a local and not a general law, and, not having been advertised and passed as required by section 106 et seq. of tie Constitution, is void. These sections of tie Constitution have been the subject of many decisions of our court resulting, sometimes in upholding, and sometimes striking down, legislative enactment; but tie rule of distinction seems to be that tie Legislature in passing a general law may use tie population as shown by the federal census, as a basis for classification of subdivisions of tie state for purposes of special legislation applicable "to tie entire state, provided it is done in good faith and reasonably relates to tie purpose to be effected and to tie difference in population, wiici forms tie basis thereof; tiat where the population named in the act is merely arbitrary, and chosen for tie purpose of evading tie constitutional requirements, it is local legislation.

[3] Tie act of 1915 (Acts 1915, p. 898) enacts a statute applicable to all cities of tie state having a population of 100,000 or more, looking to the establishment of an efficient fire department in cities of that size. This, in effect, was a classification of tie entire state upon tiat subject and reasonably related to tie purposes to be effected and to tie populations in tie classes into which tie state was thus divided. Tiat at tie time of its enactment there was only one city of tie designated population cannot affect tie general rule. State ex rel. Gunter v. Thompson, 193 Ala. 561, 69 South. 461; State ex rel. v. Thompson, 142 Ala. 98 et seq., 38 South. 679; Bd. of Rev. of Jeff County v. Huey, 195 Ala. 83, 70 South. 744. The act of 1919, therefore, cannot be stricken down on tie ground tiat tie original act is local and not general.

[4-6] It is furtier insisted that the act as amended is void as being in conflict with sections 68, 94, 97, and 98 of tie Constitution of 1901. It is contended for appellee tiat the act undertakes to create a “pension system” pure and simple, and to grant to members of tie fire departments in tie various cities, in tie class named, extra fee or allowance, after service shall have been rendered or contract made. Cons. § 68. The c'ontract of service of members of tie fire department is not for a fixed term, but is terminable at tie will of either party, and therefore tie salary or wage may be changed at any time, either by law. or by mutual contract, and a fireman remaining in the service of a municipality after tie passage of a statute affecting his compensatiop is bound by tie contract of service as governed by tie law in force during tie time of service. Every contract' is made with reference to and subject to existing law, and every law affecting tie contract is read into and becomes a part of tie contract when made. This is true as between individuals dealing between themselves by contract and is also true as between individuals and government, where tie contract is consummated, by an acceptance on tie part of tie individual of tie terms of a statute proposing a status, wiici tie individual may either accept or reject. Looking to tie future, and not retrospectively, tie Legislature may provide a system, whereby municipalities, having under their jurisdictions millions of dollars worth of property liable to destruction by fire, can increase in efficiency a department designed to protect life and property, by providing for tie members of its fire departments, their wives and little ones, after tie term of active service has been ended, either by death or age, 'to tie end tiat the public may retain in this hazardous service men of the most faithful and efficient class. Reasons in support of this proposition are too obvious'to be stated in detail. The compensation thus paid, by whatever name called, is not a gratuity, but a part of tie stipulated consideration, for wiici they contracted and served. Mahon v. Bd. of Education, 171 N. Y. 263, 63 N. E. 1107, 89 Am. St. Rep. 810; Exempt Firemen’s B. Fund v. Roome, 93 N. Y. 313, 45 Am. Rep. 217; State ex rel. Haberland v. Love, 89 Neb. 149, 131 N. W. 196, 64 L. R. A. (N. S.) 607, Ann. Cas. 1912C, 542; Taylor v. Mott, 123 Cal. 497, 56 Pac. 256. Tie section of tie Nebraska Constitution (article 3, § 16) discussed in the Love Case, supra, is very similar to section 68 of our Constitution, and the Constitutions of the other states discussed in tie above-cited cases are of the same import. Tie case of State v. Ziegenhein, 144 Mo. 283, 45 S. W. 1099, 66 Am. St. Rep. 420, cited by appellee, stands alone against tie great weight of authority. Tie law does not violate section 68 of tie Constitution of 1901.

[7] The creation of tie fund and tie ma: chinery for carrying out tie provisions thereof is governmental, and hence does not violate section 94 of tie Cons. 1901. State ex rel. Haberland v. Love, supra; Com. v. Walton, 182 Pa. 373, 38 Atl. 790, 61 Am. St. Rep. 712; Phœnix Assur. Co. v. Montgomery Fire Dept., *209 117 Ala. 631, 23 South. 843, 42 L. R. A. 468; Fireman’s Ben. Ass’n v. Lounsbury, 21 Ill. 511, 74 Am. Dec. 115; Exempt Firemen’s Ben. Fund v. Roome, 93 N. Y. 313, 45 Am. Rep. 217; State v. Wheeler, 33 Neb. 563, 50 N. W. 770.

[8] From wbat bas been said above it -will be seen that sections 97 and 98 are not applicable to tbe case at bar. The amounts to bé paid after death or retirement having been earned during the term of service, the Constitution does not prevent its payment at any time it may become due under the contract. Sections 97 and 98 are inhibitions against the payment for services not rendered.

[9] Besides, a fireman is not such an officer as is contemplated by the two sections named. To. constitute a public officer, within the meaning of sections 97 and 98 of the Constitution, it is necessary that he have and exercise certain independent public duties incident to an office created by law, carrying with it a part of the sovereignty of the state. A fireman is not such an officer. State ex rel. Attorney General v. Jennings, 57 Ohio St. 415, 49 N. E. 404, 63 Am. St. Rep. 723. And in Phœnix Assur. Co. v. Fire Department of Montgomery, 117 Ala. 631, 650, 23 South. 843, 849 (42 L. R. A. 468), it is said:

“And the members of the companies are not servants, agents, or officers of the state or of the municipal corporation.”

The cases cited are not in conflict. The case of Schmitt v. Dooling, 145 Ky. 240, 140 S. W. 197, 36 L. R. A. (N. S.) 881, Ann. Cas. 1913B, 1078, only going so far as to hold that a fireman was an officer in “its broader sense,” which we take to mean for the purpose of the ease then being decided.

[10] It will be seen from a reading of the authority cited above that the levy of the tax or license of y2 of 1 per cent, is for public and not for private use, and this view is upheld in an exhaustive and able opinion delivered by the late Chief Justice Briekell in-Phœnix Assur. Co. v. Montgomery Fire Dept., 117 Ala. 631-647 et seq., 23 South. 843, 42 L. R. A. 468, in a case similar to the one now under consideration, and we cannot add to the argument there made.

[11] The tax or license levied by tbe act of 1915 (page 898 et seq.) as -amended by the act of 1919 (pages 111-116) is a tax levied by the Legislature for the benefit of tbe various municipalities falling within tbe class to which they belong and is just as if the Legislature had authorized the levy of the license and an, ordinance had been passed carrying it into effect, and so long as the levy does not exceed, by municipal ordinance or direct levy for the use of the municipality by' the Legislature, the amount fixed by the Gen. Rev. Act 1919 (Laws 1919,. p. 414) Schedule 59, subd. b, there is no conflict in the two statutes, requiring the striking down of the one or the other. The other questions that may hereafter arise are not passed upon, as they are either not argued or expressly waived in brief.

For the errors pointed out, the judgment of the trial court is reversed, and the cause is remanded.

Reversed and remanded.

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