Little v. State ex rel. Huey

| Ala. | Nov 15, 1902

HARALSON, J.

The charter of the city of Bessemer, (Acts, 1900-1901, p. 444) section 29, prescribes the powers of the mayor and aldermen of the city, and in the 10th specification of powers, bestows on them the authority “To appoint anil regulate day and night watchmen, police patrol and captain thereof, and to maintain a police force consisting of snclr officers and patrolmen, and under such rules and regulations as they may deem necessary.”

The legislature, on the 3rd March, 1903, passed an act entitled “An. act, to establish a hoard of police commissioners of the city of Bessemer, Alabama; to provide for the appointment of such commissioners.; to define their powers and duties and to regulate the police department of said city.”

The first section of the act, provides for the appointment immediately after its passage and approval by the Governor, of a hoard of commissioners of police of the city, consisting of five members, prescribing their terms of office, etc. etc. The second section prescribes the oath to he taken, by each member of the hoard, etc. The third, “That said hoard of commissioners'of police * * * shall have'the sole and exclusive power, and it shall he their duty, as soon as they are appointed and qualified, to appoint a chief of police, and such other officers and patrolmen as they may from time to time deem necessary for the proper protection of the city;” that they shall elect one of their number as president, keep records and requiring one of them to act as clerk 03' secretary; that they shall hold monthly meetings and such other meetings as the interests of the city from tisne to time requires, giving the hoard full and-exclusive control and direction of the officers and members of the police force; to prescribe the salaries of the police officers, and to issue warrants monthly upon the treasurer or disbursing officer of said city for the payment of the police department. The fourth section fixes the tenn of the chief of police at two years and until his successor is. elected and. qualified, unless sooner removed, and the mode of filling vacancies; the nower to fix the terms of office of all other officers unde-3’ their control; to prescribe an oath-for the several members of the police force to take, and to prescribe the amount and condition of their official bonds, payable to the city and to approve the same. The fifth section bestows on the commissioners the exclusive power to appoint the sanitary inspector, the wardens of the city prison and 'the policemen to take charge of the city convicts, working on the streets, and have the control of the same, and of the city prison, and to fix the compensation of such officers to be paid as other members of the police department are paid, etc. Section 6 provides that the chief of police and other officers of the police force are removable at the pleasure of the board, or for their suspension, according to rules to be prescribed by the commission for bringing accusations against tlieim, their trial, etc. Section 7 provides “That all laws and parts of laws, both general and special, in conflict with the provisions of this act be, and the same are hereby repealed.” No provision is made for any compensation to members of the board, for any services they may render the city,, as such.

BTom the provisions of the act it will appear, that every provision in it is referable Jo and cognate to the subject expressed in the title, and is not- in anywise' offensive to section. 45 of the constitution, prescribing, that “Each law shall contain but one subject, which shall be clearly expressed' in its title.” — Ballentyne v. Wickersham, 75 Ala. 533" court="Ala." date_filed="1883-12-15" href="https://app.midpage.ai/document/ballentyne-v-wickersham-6511919?utm_source=webapp" opinion_id="6511919">75 Ala. 533; Bell v. The State, 115 Ala. 97. The act is in form original, is in itself intelligible and complete, and does not either in its title or in its body purport or appear to be revisory or amendatory of any existing law, and was not offensive to the provision of the section last referred to, that “no law shall be revived, amended or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended or conferred, shall be reenacted and published at length.” — City Council v. Birdsong, 126 Ala. 632" court="Ala." date_filed="1899-11-15" href="https://app.midpage.ai/document/city-council-v-birdsong-6518656?utm_source=webapp" opinion_id="6518656">126 Ala. 632; Thomas v. State, 124 Ala. 48" court="Ala." date_filed="1899-11-15" href="https://app.midpage.ai/document/thomas-v-state-6518312?utm_source=webapp" opinion_id="6518312">124 Ala. 48; State v. Street, 117 Ala. 203" court="Ala." date_filed="1897-11-15" href="https://app.midpage.ai/document/state-v-street-6517448?utm_source=webapp" opinion_id="6517448">117 Ala. 203; State v. Rodgers, 107 Ala. 444" court="Ala." date_filed="1894-11-15" href="https://app.midpage.ai/document/state-v-rogers-6516198?utm_source=webapp" opinion_id="6516198">107 Ala. 444.

In so far as the same constitutional) provisions in the constitution of 1901, which existed under the one of 1875, in respect to amending statutes, are concerned, we find nothing in the act. in question,, offensive to constitutional restrictions. But the provisions in the two constitutions are not the same in other respects to be now noticed.

Section 104 of the present constitution provides, that “The Legislature shall not pass a special, private or local law in any of the following [31] cases,” the 1.8th of which is, “Amending, confirming or extending the charter1 of any private municipal corporation” etc. Then follows the provision: “The legislature shall pass general laws for cases enumerated1 in this section,” etc.

Section 105 provides that, “No. special, private or local law, except a law fixing the time of holding courts, shall be enacted in any case, which is provided for by a general law, or when relief sought can be given by any court of this State; and the courts, and not the legislature, shall judge as to whether the matter of said law is provided for by a- general law, and as to whether relief sought can he given by any court; nor shall the legislature indirectly enact any special, private or local law by the partial repeal of a general law.”

Section 109 provides, that “The legislature shall pass general laws under which local and private interests shall be provided for and protected.”

Section 110 defines a general law as one which applies to the whole State, a local law as one, which applies to any political subdivision or subdivisions thereof, less than the whole, and a special or private law as one which applies to an individual, association or corporation.

There can be no question, but that the act was..intended to' take away from the mayor and aldermen the control of the police department of the city, by repealing that part of its charter conferring on them such power, and committing it entirely to the police commissioners, authorized Toy the act to be appointed and organized; and if it were not -for the provisions of the new constitution, this was competent to be done, since it was within legislative competency "to- repeal a part or all of the city’s charter.

The word “amend,” as defined means “to reform; to remove errors from; to rectify; to improve; to amend.” These words “imply the lessening of evil; to improve and better; the increase of good. To reform; implies both the lessening of evil and .the increase of good. Amend, — what is wrong; correct — what is erroneous; rectify mistakes, and better the condition.”- — Worcester I)ic. “To miake better, to change from bad to the better.” 2 Cyc. 29. The word, amend, in legal phraseology, does not generally lhean the same thing as repeal. But it does not follow that amendments of a statute may not often be accomplished by rex>eals of some of its parts, and in this way to better the condition, and change from bad to the better. If desired, for instance, to eliminate from the charter of the city the provision for its municipal control of the police department, it might have been accomplished under the older constitution, Tb-yi the proper amendment, of the section in which that power is conferred, and substituting therefor, the control of that department by commissioners, as i-s attempted in the act under consideration; or, it might have been accomplished, asi undertaken here, by a repeal of that part of the charter, and by an'independent act, passed in. a manner to free it from constitutional objections, placing the police department in the control of commissioners to be appointed for the purpose. And so, it might, have been possible by repeals of different parts of the char-' ter, and by separate acts to take the place of the repealed parts, to adopt amendments as effectually as if done by direct acts of amendments. This system of legislation is condemned by the present constitution in-said section 10-1, subdivision IS, and other sections forbidding the amending or altering of the charter of any private municipal corporation, in the passage by the legislature of “a special, private: or local law.” The attempt was- made to do by an indirect method that which is forbidden to be done directly. It is scarcely open to dispute, if by repeal of a part of the charter, conferring corporate, power npo-n the mayor ■ and aldermen, and at the same time, in the same act or by another, these same corporate powers and others are conferred upon other persons to he by them executed, that the original act has been amended and enlarged.

This view is emphasized, re-enforced and made certain to the judicial mind when taken in connection with the sections, above referred to, other than section 104, directing that the legislature shall pass general laws for the eases enumerated in section 104, and providing that no special, private or local law * * * shall he enacted in any case, which is provided for by general law.

It cannot he denied that the act in question, seeks to confer corporate powers, and none others on the police commissioners. — School District v. Insurance Co., 103 U.S. 707" court="SCOTUS" date_filed="1881-05-18" href="https://app.midpage.ai/document/school-district-v-insurance-co-90388?utm_source=webapp" opinion_id="90388">103 U. S. 707.

The purpose of the framers of the constitution conies out so. plainly as not to be misunderstod, when, these different sections of the instrument they framed are considered together. It was to prevent just such legislation as that with which we deal that these constitutional provisions, were placed in the present constitution. It was tire province and duty of the legislature, if it was a wise and beneficial scheme of municipal government to have the police department of this city managed and controlled by police commissioners, in the manner .attempted by this act, to have passed a general law, if one. was not already in existence, under which, by application to the probate or chancery court of the county, the corporate powers attempted to- be conferred by the act, might have been obtained.

We find no error in the ruling of the court in sustaining the demurrer to the answer, nor in the judgment. of the court excluding the defelnidants from the office of police commissioners of said city.

'Affirmed.

Tyson, J., dissenting.