Jones v. ConradiJones v. Conradi
Section 17-2-8 provides:
“In all counties having more than five circuit judges, there shall be elected, at each election when clerks of the circuit court are elected, a deputy circuit clerk, who shall hold office during the term of the circuit clerk of such county and until his successor is elected and qualified.”
When this action was filed, five counties, including Jefferson County, had legislative authority for more than five circuit court judgeships: the 6th Judicial Circuit, composed of Tuscaloosa County;2 the 13th Judicial
The circuit clerks sued the defendants for a declaratory judgment, averring that it was unlawful for “the individual defendants to seek to fill the office of elected deputy circuit clerk,” because, they said,
The legal import of what is now
Second, and as will become apparent, it would be necessary to understand the legal import of what is now
Because the proper construction of
The Construction of § 17-2-8
Section 17-2-8 traces its roots to Ala. Acts 1915, No. 686, which provided for an elected deputy circuit clerk “in all counties that alone constitute a circuit in which there are more than three judges and the circuit court therein is held at the county site and at some other place in the county.” Because this provision has a special meaning in relation to the 10th Judicial Circuit, we observe that for many decades, the 10th Judicial Circuit, which is composed of Jefferson County, has had the distinction of consisting of two separate divisions. One division is typically referred to as the “Birmingham Division” and the other is typically referred to as the “Bessemer Division” or the “Bessemer Cut-Off Division.” Historically, the Bessemer Division has operated virtually as a separate judicial circuit, United Supply Co. v. Hinton Constr. Dev., Inc., 396 So.2d 1047, 1049-50 (Ala. 1981), and, the record indicates, is the only area where an elected deputy clerk has ever served.
In practice, Act No. 686 applied only to Jefferson County, which was the only county that met its requirements. No other county could meet its requirements in the future without additional legislation,6 because no other county had more than three circuit judgeships. Indeed, notwithstanding the broad language of Act No. 686 — providing literally for a deputy circuit clerk in “all counties” that met its requirements — in Brandon v. State, 233 Ala. 1, 173 So. 238 (1936), this Court clearly indicated that it was intended to be a local law, “applicable to the Bessemer Division.”7
In this regard, Act No. 686 was not unusual in using broadly inclusive language to advance a hidden, and far narrower, intent of local applicability. During the early part of this century, it was not unheard of for the legislature to pass enactments as “general” statutes “which were in effect and application necessarily local,” Preface to Ala. Code 1923, p. vi, and which were intended to have only local applicability. In Henry v. Wilson, 224 Ala. 261, 263, 139 So. 259, 261 (1932), the Court recognized the existing practice of wording an act with “a cloak of generality” so as “to save the expense or publicity of local legislation.” In 1934, the Court in Abramson v. Hard, 229 Ala. 2, 6-7, 155 So. 590, 593 (1934), cautioned: ” ‘It often happens that the true intention of the law-making body, though obvious, is not expressed by the language employed in a statute when that language is given its literal meaning. . . . [T]he real purpose and intent of the legislature will prevail over the literal import of the words.’ ” (Citation omitted.)
Given the foregoing, it is not surprising that the court in Brandon indicated that Act No. 686, the original source of what is now
From its original enactment in 1915, as Act No. 686, the next step in the progression of what is now
“In all counties having more than three circuit judges there shall be elected at each election when clerks of the circuit court are elected, a deputy circuit clerk, who shall hold office during the term of the circuit clerk of such county, and until his successor is elected and qualified.”
As to this codification, § 421, we emphasize the import of the statement in Brandon — that it was a codification of an existing local law. This factor is critical to the proper construction of the applicability of § 421, and any subsequent codifications of it, including
“We believe it is pertinent to point out that there exists, and has long existed, in this state, a principle that when the legislature readopts a code section, or incorporates it into a subsequent Code, prior decisions of this court permeate the statute, and it is presumed that the legislature deliberately adopted the statute with knowledge of this court‘s interpretation thereof.”
Edgehill Corp. v. Hutchens, 282 Ala. 492, 495-96, 213 So.2d 225, 227-28 (1968). “A long line of cases hold that where the legislature re-enacts a statute . . . which has been previously construed by the judiciary, the construction given in a prior decision must be accepted as part of the same.” Musgrove v. U.S. Pipe Foundry Co., 290 Ala. 156, 159, 274 So.2d 640, 643 (1972), overruled on other grounds, Tetter v. State, 358 So.2d 1046 (Ala. 1978). In Nolen v. Clark, 238 Ala. 320, 191 So. 342 (1939), the Court held that where a statute is reenacted without material change, “it must be assumed that the Legislature was familiar with its interpretation by this court and was satisfied therewith.”
As stated above, in Brandon, a 1936 case, the Court indicated that § 421, 1923 Code, was a “codification and adoption” of a local law applicable to the Bessemer Division. 233 Ala. at 1, 173 So. at 238. This would control as to any subsequent codifications of the provision in issue; any such codifications would have an established construction as a local law applicable to the Bessemer Division.
Following the Brandon decision, the Code of 1940 replaced the 1923 Code. In the 1940 Code, § 421 (which Brandon had indicated was a codification of a local law), was recodified without change at Title 17, § 73. Consistent with the rule that a prior construction is binding on subsequent adoptions, the provision from § 421, as codified in the Code of 1940, and as materially unchanged in subsequent codifications to the present,10 would also be construed as a local law applicable to the Bessemer Division. Unfortunately, this point has evidently been obscured by time and events, and that obscuring has perhaps led to the present confusion that results in the idea that
Despite the fact that the literal “all counties” language of the provision in issue is, at a minimum, highly misleading as to its local applicability, it has never been expressly repealed, notwithstanding the legislature‘s inclusion in the Code of 1940 of language specifically referring to the Bessemer Division. To elaborate, when the legislature recodified the provision at § 421 of the 1923 Code, as a part of the Code of 1940, it also adopted as a part of the Code of 1940, Title 13, § 199, a separate provision with language specifically referring to the Bessemer Division. Section 199 directly provided for the election of a deputy clerk for the Bessemer Division.11 Moreover, the parties agree that § 199 was a local law, providing only for the office of elected deputy clerk for the Bessemer Division,12 and that like the separate provision carried over into the Code of 1940 from § 421 of the 1923 Code, § 199 also derives from Acts 1915, No. 686.
In short, what had previously been a single provision providing for the position of elected deputy clerk, first as Act No. 686, Ala. Acts 1915, and then as § 421 of the 1923 Code, appeared as two different provisions in the Code of 1940, both deriving from the same source, Ala. Acts 1915, No. 686. The parties assert that one of those 1940 provisions, § 199, authorized only the election of a deputy clerk for the Bessemer Division. The language of the other provision, the one carried over from § 421, although that provision had been construed as a local law applicable only to the Bessemer Division, literally stated that an elected deputy clerk was authorized in “all counties” with more than three circuit judgeships.
The question posed by the inclusion in the Code of 1940 of the two separate provisions deriving from the same source, as implicitly framed by the trial court, was whether the “all counties” provision in § 421 of the 1923 Code was impliedly repealed by the adoption of Title 13, § 199, Code of 1940 (which, the parties agree, was applicable only to the Bessemer Division).13 If, as the trial court suggested, the “all counties” language from § 421 was “irreconcilable” with the narrower language in § 199, then the court properly held that the later provision, § 199, repealed the provision carried over from § 421. See Merrell v. City of Huntsville, 460 So.2d 1248, 1251 (Ala. 1984). Stated differently, for the court to properly find an implicit repeal, the statutes in issue would have to be “directly repugnant.” Id.; Fletcher v. Tuscaloosa Fed. Sav. Loan Ass‘n, 294 Ala. 173, 314 So.2d 51 (1975).
Analysis of the Purported 1940 Repeal
The trial court held that Code of 1940, Title 13, § 199, repealed the provision carried over from § 421, and accordingly, that any subsequent codification of the provision from § 421, e.g.,
It is long-established and familiar law that legislative intent, the “polestar” for interpreting a statute, determines the meaning of a statute. See, e.g., Sunflower Lumber Co. v. Turner Supply Co., 158 Ala. 191, 48 So. 510 (1909) (indicating that in interpreting a statute, “the intention of the legislature must be ascertained and must govern“); Ex parte Jordan, 592 So.2d 579, 581 (Ala. 1992) (stating that it is “familiar law in the interpretation of statutes” that “the intent of the legislature is the polestar by which this Court must be guided“). As we have indicated, the proper construction of § 421, the defining “intent” that must guide us, is that § 421 was a codification of a local law applicable only to the Bessemer Division. Thus, if the purported source of the conflict, the “all counties” language of § 421, 1923 Code, cannot properly be construed to have a statewide applicability, but is properly construed as applicable only to Jefferson County‘s Bessemer Division, and if Code of 1940, Title 13, § 199, as the parties agree, has an identical applicability, then there is no conflict as to applicability. If both statutes apply only to provide for an elected deputy circuit clerk for the Bessemer Division, then those two provisions may be redundant in pertinent part,14 but they are hardly “irreconcilable” or “directly repugnant.”
Assuming, as the parties agree, that Code of 1940, Title 13, § 199, was a local law applicable only to provide the Bessemer Division with an elected deputy circuit clerk, and holding, as we do, that the provision from § 421, recodified in the 1940 Code, and recodified today at
Because the statutory provision under which the defendants seek office, a statute now appearing as
AFFIRMED.
MADDOX, SHORES, HOUSTON, and INGRAM, JJ., concur.
COOK and BUTTS, JJ., dissent.
Notes
In the same session at which the legislature enacted Act No. 686, it enacted legislation to provide the 10th Judicial Circuit, Jefferson County, with 10 circuit judgeships. Previously, that circuit had had two circuit judgeships. See Ala. Acts 1907, No. 215; Acts 1915, No. 712.
No legislation was enacted giving any other circuit authority for more than three circuit judgeships until 1953. See Ala. Acts 1953, No. 526.
Brandon involved the construction of a law enacted in 1923, which the Court declared to be have been enacted in a manner contrary to the Constitution of 1901, § 106, which set requirements for the passage of local laws. That 1923 law had provided for the office of deputy clerk for the “criminal division” of all counties meeting certain requirements, but it was determined to be a local law, because it was applicable only to Jefferson County at the time of its enactment and could not apply to any other county absent additional legislation.
In striking down the 1923 law as unconstitutional, the Court emphasized, however, that § 421 of the 1923 Code, which “seems to be a codification of the Act of 1915” (Gen.Acts 1915, p. 741, §§ 1-3 [Act. No. 686]) applicable to the Bessemer Division, 233 Ala. at 4, 173 So. at 240, “would validly provide for an elected deputy circuit clerk, notwithstanding its character as a local law.”
The Court reasoned that § 106 of the Constitution, which addressed the requisites for enactment of a “special, private, or local law,” had “no application to the adoption of the Code [of 1923], and therefore, though the act of 1915 [Act No. 686] was passed in violation of section 106, its codification and adoption as part of the Code of 1923 made it valid.”
As to procedural deficiencies in enacting a statute that is later codified, see Fuller v. Associates Commercial Corp., 389 So.2d 506, 509 (Ala. 1980) (stating that “[a]ll infirmities of legislative procedure in enacting an original act are cured when the act is incorporated into a code and the code adopted by the legislature“).
That section provided, in pertinent part:
“At the general election held on the first Tuesday after the first Monday in November, 1940, and every six years thereafter there shall be elected by the qualified voters of the territory over which the circuit court of the tenth judicial circuit, sitting at Bessemer, has and exercises jurisdiction, a deputy clerk of the circuit court, who shall hold office for six years and until his successor is elected and qualified. . . .”