Kumpe v. Irwin

140 Ala. 460 | Ala. | 1903

HARALSON, J.

This case involves the validity of an act of the last legislature, repealing a former act regulating” the trial of misdemeanors in Lawrence county.

There is no dispute that the act, the validity of which is called in question, is a local law. Section 106 of the Constitution provides, that “No special, private or local law shall be passed on any subject not enumerated in section 104 of tbe constitution, except in reference to fixing tbe time of bolding courts, unless notice of tbe intention to apply tberefor shall be published, without cost to tbe State, in tbe county or counties where tbe matter or thing to be affected may be situated, which notice shall state tbe substance of tbe proposed law and be published at least once a week for four consecutive weeks in some newspaper published in such county or counties, * * * prior to tbe introduction of tbe bill; and proof by affidavit that said notice has been given shall be exhibited to each bouse of tbe Legislature, and said proof spread upon tbe Journal. Tbe courts shall pronounce void any special, private or local law which tbe Journals did not affirmatively show was passed in accordance with tbe provisions of this section.”

Section 107 provides: “Tbe Legislature shall not, by special, private or local law, repeal or modify any special, private or local law except upon notice being given and shown as provided in tbe last preceding section.”

A notice by W. T. Lowe of bis intention to apply for a law7 by tbe legislature, to repeal tbe act referred to in tbe title of tbe repealing act in question, appears in tbe transcript. But, tbe requisite proof of this notice was not made. Tbe proof submitted with tbe act to show a compliance with tbe constitutional requirement, was an affidavit by Jourd White as follows: “Tbe State of Alabama, Lawrence county. Before me, R. Lowe, a notary public in and for said county, personally appeared Jourd White, who, after being duly sworn, says be is tbe editor and publisher of tbe Moulton Advertiser, a newspaper published at Moulton, in Lawrence county, Alabama, and that tbe notice herewith attached has been published once a week. This August 29, 1903. (Signed) Jourd White. R. Lowe, Notary Public.”

.We do not consider whether tbe notice was sufficient, if properly proved.

It will be observed, that this affidavit stated no more than that Mr. White was editor and publisher of tbe Moulton Advertiser, a newspaper published in Lawrence county, and that the notice referred to has been published once a week. It fails to show that the notice was published in the Moulton Advertiser, a newspaper published in Lawrence county, or' that it was published “once a week for four consecutive weeks” in any paper. It shows no sufficient compliance with the ■ mandatory provision of the constitution. The Journals do not affirmatively show that the act was passed in accordance with the provisions of said section, in which case, the courts are required, without any discretion, to pronounce the act to be void.

Affirmed.