Lower v. State

57 So. 500 | Ala. Ct. App. | 1912

WALKER, P. J.

It is contended in behalf of the appellant that the act of the Legislature purporting to establish the Birmingham court of common pleas (Loc. Acts Ala. 1911, p. 371) is unconstitutional because of a failure, to give the notice of intention to apply therefor, as required by section 106 of the Constitution; and that, therefore, the charge upon which the appellant was tried, which was sworn to before H. B. Abernathy, as the judge of that court, -was without legal validity, and was subject to the demurrer to it suggesting that objection. The specific ground of the objection urged is that the proof of publication of notice, which accompanied the introduction on March 22, 1911, of the bill for the creation of the court, in stating that the publication was made in a named newspaper published in Jefferson county “once a week for four consecutive Aveeks, on, to wit, February 24, March 3, 10, 17, 1911,” failed to show a compliance with the requirement that .such notice “be published at least once a week for four ■consequtive weeks * * prior to !the introduction of the bill.” The contention is that to constitute a compliance with this requirement of the Constitution four weeks must intervene between the date of the first publication of the notice and the introduction of the bill.

It may be presumed that in framing that provision the makers of the Constitution had in mind the then existing state of the law as to the matter of the construction to be placed upon such a provision. The situation was that, in the absence of a statute governing the matter, a requirement that legal notice be published for a given number of weeks was in some jurisdictions held to be complied with by publishing it in that number of successive weeks, though the first publication be less than that number of full weeks prior to the act of which the notice is given; while in other jurisdictions it was held that the number of weeks stated must intervene between the date of the first publication and the performance of the act referred to in the notice.—Olcott v. Robinson, 21 N. Y. 150, 78 Am. Dec. 126; 29 Cyc. 1121; 37 Cent. Dig. tit. “Notice,” § 29. In other words, there was a conflict in the decisions in different jurisdictions where there was no statutory definition or provision bearing on the question. But in Alabama at that time there was in force a section of the Code which bore the heading, “Publication for a specified number of weeks or days defined,” and which provided that, “when the notice is required to- be given for a specified number of weeks, it must be given by consecutive weekly insertions for the number of weeks so specified; and when the notice is of a proceeding to be had or of an act to be done on a specified day, if the publication be for one week, the insertion must be not less than six days before such day; if for two weeks, the first insertion must be at least twelve days before such day; if for three weeks, the first insertion must be at least eighteen days before such day; if for four weeks, the first insertion must be at least twenty-four days before such day,” etc. Code of 1896, § 3043, now section 5184 of Code of 1907. By that enactment the Legislature took cognizance of the doubts as to the meaning of such requirements as to giving notice which were suggested by the conflicting views on the subject prevailing in different jurisdictions in which there was an absence of statutory definitions governing the question, and removed such doubts by defining the meaning of terms in common use in making provision for the giving of notices.

Of course, the makers „of the Constitution were not controlled by the provisions of that statute, and, if they had made it manifest that the language they used was to have a meaning different from that given by the statute to the same language when used in a similar connection, the statutory definition of the terms would have to be disregarded. But, when language is found in the Constitution the meaning of which when used in the general laws of the state for purposes analogous to that for which it is used in the Constitution has been specifically defined by a general statute then in force, it may at least be said that, in the absence of. any indication in the Constitution of a different purpose, such a constitutional provision should be construed with reference to the provisions of a general statute of the state having a bearing upon the meaning of terms employed in it, rather than with reference to the views of the courts on questions arising as to the meaning of such terms in the absence of a statute governing the determination of such questions, especially when it is found that the views on such questions which have prevailed in different courts are much at variance. In other Words, the fact that there was in force at the time of the making of the Constitution a legislative construction of terms in common use in statutes making provision for the giving of notices furnishes a basis for a presumption that those terms when used in the Constitution were intended to have the meaning which had been given to them by that legislative construction; there being nothing in the Constitution to rebut this presumption.—Moog v. Randolph, 77 Ala. 597, 606; Mayor v. State, 15 Md. 376, 74 Am. Dec. 572. In view of the probability that the framers of the Constitution in using the language which is brought into question had in mind the fact that the Legislature had by a general law defined the meaning of practically identical language when employed in analogous connections, we are of opinion that it is a, fair inference that the requirement of section 106 of the Constitution that notice of an intention to apply to the Legislature for a local law shall “be published at least once a week for four consecutive weeks in some newspaper published in such county or counties * * * prior to the introduction of the MU” is complied with by four successive weekly publications of the required notice, the first insertion being at least 24 days prior to the introduction of the bill, as provided by section 5184 of the Code in case of a similar provision for notice when prescribed by a general law. The decision in the case of Ex parte Black, 144 Ala. 1, 40 South. 133, furnishes some support for this conclusion. Certainly it cannot be said that the Legislature, in treating as sufficient the proof of publication of notice which is brought into question in this case, so clearly and unmistakably disregarded the requirement of the Constitution on the subject as to justify the court in deciding that its attempt to enact the local law which is assailed was wholly without effect.

Affirmed.