Medical College of Alabama v. Muldon & Sons

46 Ala. 603 | Ala. | 1871

B. F. SAFFOLD, J.

The medical college was incorporated on the 30th of January, 1860. On the 24th of February, 1860, a statute was enacted to regulate the agencies of insurance companies not incorporated by the State of Alabama, in their operations within the State. This law was comprehensive in its character, and designed to protect the citizens against irresponsible companies and agencies. It stipulated how suits should be instituted against them, the least amount of capital actually invested which should entitle them to carry on their business, what statements in writing should be filed in designated offices, and their effect as evidence. It provided for ascertaining and collecting taxes levied upon them. It also imposed restrictions upon them, and penalties for the violation or nonperformance of all the requirements of the act. Amongst the requisitions exacted of them was one that, “before transacting any business in the city or county of Mobile, they should pay the treasurer of the Fire Department Association of Mobile the sum of . two hundred dollars, for the benefit of said association; to the trustees of the medical college at Mobile the sum of two hundred dollars, such payment to be made from year to year so long as such agency is continued in the city or county of Mobile.” A similar requisition yr§s made of them in favor of fire compañíes in any other city or town where they might do business. This law was embodied in the Bevised Code of 1867, with inconsiderable exceptions, (§§ 1180, 1191,) and is still in force, except so far as it has been modified by subsequent legislation, to be considered presently.

This suit was commenced by the medical college on the 14th of November, 1868, to recover the sums alleged to be due_to it under the provision above quoted, for the years 1867 and 1868. On an agreed state of facts the ruling of the city court was adverse to the plaintiffs, and from the said judgment the appeal was taken.

Section 1186 of the Bevised Code, which is the 8th section of the act of 1860, was amended August 5th, 1868,- by striking out the appropriation to the medical college. It is contended for the appellant, that this amendment is inoperative for non-compliance with article 4, § 2, of the State constitution respecting the repeal of the section amended. This constitutional provision was intended to make legislation express and comprehensible, and to avoid as far as possible the complications growing out of the implied repeal of laws. We have held it to be mandatory so far as to nullify parts of laws not expressed in the title, and the whole law, when the unity of the subject was violated and the matter was inseparable. It is plainly the duty of the legislature to formally repeal a section amended, but when it fails to do so, the courts should nevertheless maintain the legislation if there is vigor enough in the constitution to correct the omission. In this case the constitution directly commands the precise thing to be done, and is a law that the section amended is repealed. The proposition to amend a particular section of a law, is the expression of the subject to be legislated upon. This new act contains the entire section amended, and the amendment is clearly set forth.

What is the character of the plaintiff’s claim ? It is not .a penalty, for that is a suffering in person or property imposed by law or agreement for someting committed or omitted. It is not strictly a tax on account of the disposition made of it, and because other provision is made in the statute for the taxation of these agencies. It must, however, be referred to that head, and is a quasi impost or tribute exacted by the State and appropriated to the benefit of this college. If it be admitted that there are some of the constituents of a contract between the State and the-companies, which is the utmost that can be claimed for the' plaintiff, no consideration moves from the plaintiff, and therefore it is a stranger to the consideration upon which the contract is founded. Without such a consideration no vested right is created. But the statute giving the donation was repealed before trial. When a statute is repealed, it must be considered, except as to those transactions which are passed and closed, as if it never existed. — Dwarris on Stat. 676; Butler v. Palmer, 1 Hill, 324-328 ; 9 Wall. 506. Rights of action and other executory rights arising under a statute are said to be vested, (Beadleston v. Sprague, 6 Johns. R. 101,) but unless they amount to a contract, and the statute being simply repealed, the very stock on which they were grafted is cut down, and there is no rule of construction under which they can be saved. — 1 Hill, 328.

The judgment is affirmed.