Floyd PEDDYCOART et al., Mrs. Peggy J. Salamone, etc., Robert Lee McKinnon, Sr., etc., Roger Dale Crocker and Richard Lambert et al.
v.
CITY OF BIRMINGHAM.
Supreme Court of Alabama.
*809 W. Eugene Rutledge of Rutledge, Williams, Williams & Norton, Anniston, for appellants Mrs. Peggy J. Salamone, who sues in her capacity as the mother of Michael A. Salamone, a 17-year old minor child, Robert Lee McKinnon, Sr., as Administrator of the Estate of Robert Lee McKinnon, Jr., deceased, and amicus curiae, Peggy J. Salamone as appellant in the case of Mrs. Peggy J. Salamone, who sues in her capacity as the mother of Michael A. Salamone, deceased, a 17-year old minor child v. The City of Birmingham, (appellee).
Mike W. McCormick, Birmingham, for appellant Roger Dale Crocker.
Roger M. Monroe of Jones & Monroe, Birmingham, for appellants Richard Lambert et al., and Floyd Peddycoart et al.
Milford G. Bass, Jr., Birmingham, for City of Birmingham, appellee.
BEATTY, Justice.
This is a consolidated appeal by five plaintiffs who filed tort actions against the City of Birmingham. In each case the trial court granted a motion to dismiss based upon a plea of governmental immunity under Tit. 62, § 660, Alabama Code (Recomp. 1958):
The city shall not be liable in damages for personal injuries or damage to personal property by reason of any act or omission done or omitted in the exercise of its governmental functions or failure to exercise such functions; provided, however, that this provision shall not be construed to prohibit or limit the recovery of damages for personal injuries arising out of defects in highways as now provided or allowed by law.
*810 The plaintiffs have placed in issue the constitutionality of that statute under both the state and federal Constitutions. It is contended that § 660 is a local Act notwithstanding the fact that in its original form, Act 257, § 13, Acts of Alabama, Regular Session 1915, it bore a minimum population classification of 100,000. The plaintiffs argue that this section is constitutionally offensive under § 106 of the Alabama Constitution of 1901 because the population classification is not reasonably related to the purpose of the section, and because it permits an unequal application of the law.
Our cases have held that such a relationship must exist between the statute's purpose and the population classification established, otherwise the classification will be deemed arbitrary, e. g., Dearborn v. Johnson,
We hold, therefore, that § 660 is unconstitutional under both the federal and state constitutions. It violates the equal protection principle and, because of its unreasonable population classification, it cannot qualify as a general law of local application.
It is also maintained that § 660 violates the provisions of Article 4, § 105, Alabama Constitution of 1901, in view of the earlier enactment of what is now Tit. 37, §§ 502-504, Alabama Code (now § 11-47-190-192, Code of Ala. 1975):
No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless said injury or wrong was done or suffered through the neglect, carelessness, or unskillfulness of some agent, officer or employe[e] of the municipality engaged in work therefor and while acting in the line of his duty, or unless the said injury or wrong was done or suffered through the neglect, carelessness or failure to remedy some defect in the streets, alleys, public ways, or buildings after the same had been called to the attention of the council or other governing body or after the same had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council or other governing body and whenever the city or town shall be made liable to an action for damages by reason of the unauthorized or wrongful acts, or the negligence, carelessness or unskillfulness of any person or corporation, then such person or corporation shall be liable to an action on the same account by the party so injured.
Article 4, § 105, Alabama Constitution of 1901 mandates that:
[N]o . . . local law, . . . shall be enacted in any case which is *811 provided for by a general law, . . . nor shall the legislature indirectly enact any . . . local law by the partial repeal of a general law.
The Alabama Constitution, § 110, defines a general law as one "which applies to the whole state," and a local law as one "which applies to any political subdivision or subdivisions . . . less than the whole;. . ."
If the interpretation of § 105 were being addressed presently for the first time it would be less onerous to give a literal meaning to the language used. We are faced with a more difficult task, however, in view of the numerous instances in the past in which this Court has approved local enactments on subjects already covered by general acts, e. g., Dudley v. Birmingham Ry., Light & Power Co.,
With conscious regard to the doctrine of stare decisis et non quieta movere, nevertheless our duty is to apply the highest law in our state as conscientiously as our abilities allow, even though this application runs counter to reasons which heretofore have been espoused for opposite views. In so doing we perform only our judicial function and do not encroach upon the separation of powers doctrine which makes the legislative branch supreme in legislative matters. Indeed, in performing that duty we only re-assert the axiom of the supremacy of our organic law over all branches of government. State Docks Commission v. State ex rel. Cummings,
The only phrase in the pertinent portion of § 105 requiring construction is "provided for." "Provided" ordinarily signifies a condition, or a limitation, qualification, or a restraint or exception. Stanley v. Colt,
Notwithstanding the unclouded language expressed in § 105, nevertheless it has prompted a large amount of litigation, beginning as early as 1903 and continuing as *812 late as 1976. Dudley v. Birmingham Ry., Light & Power Co.,
[T]o prohibit the enactment of special, private, or local laws to meet the purposes of particular cases which may be accomplished by proceedings outside of the Legislature under the provisions of general statutes enacted to meet all cases of that general character. . . . Brandon v. Askew,172 Ala. 160 ,54 So. 605 , 607 (1911).
This explanation has been utilized in other cases, e. g., Dunn v. Dean,
Another construction was placed upon § 105 in Board of Revenue v. Kayser,
'Now is there any hardship [in] saying to any man, any individual, corporation or association, that if the laws of the state have already provided for your case and you can get everything you could possibly get by appealing to the Legislature, you ought not to consume the public time in trying to get the Legislature to do what has already been done for you. That is all this provision means.' . . .
Those proceedings have been recognized, of course, as proper aids in constitutional construction. City of Montgomery v. Graham,
If we should hold that, merely because there is a general law providing for the selecting and drawing of juries for the several counties, none of its provisions can be changed by a local law, it would be tantamount to holding that a local law cannot be passed upon that subject. We do not think that this is the meaning of section 105 of the Constitution, nor that such was the intent of the Constitution framers in ordaining it.
From this recognition favoring local laws enacted on the same subject of the general law, it was a short judicial step to the present explanation:
If, in the judgment of the Legislature, local needs demand additional or supplemental laws substantially different from the general law, the Legislature has power to so enact. Courts are charged with the duty to determine whether there is a substantial difference between the general and the local law, but cannot invade the legislative domain to determine whether a county should have a local law substantially different and in addition to the state law. . . . Standard Oil Co. of Kentucky v. Limestone County,220 Ala. 231 , 235,124 So. 523 , 526 (1929).
To summarize, this Court has interpreted § 105 in at least three different ways: (1) It was intended to prevent local laws whose purposes might be accomplished outside the legislature; (2) It was intended to prevent duplication in legislative enactments; and (3) It was not intended to prevent the enactment of a local law on a subject already covered by a general law, when the local law is substantially different from the general law.
These differences present more than a mere play on words. If the facts in State ex rel. Brandon v. Prince, supra, are used as *813 an example, the legislature changed the manner of statewide jury selection by establishing a different procedure in Tuscaloosa County. While the subject-matter of jury selection was already covered by general law, it might also be said that the different procedures established by the local law created a substantial difference between the local and general laws. Likewise, in Standard Oil Co. v. Limestone County, supra, the legislature authorized one county to impose a gallonage tax on gasoline sales even though there was already in existence a statewide gallonage tax. That Court found that this local tax was not "the same tax" (and thus there was a substantial difference), however, it cannot be reasonably maintained that the two laws did not concern the same subject matter because each provided for a gallonage tax on gasoline sales. In neither case was duplication present because there was a substantial difference between the two due to the effect of the local law. Indeed, it may be stated that every case involving a change in a general law by a local legislative act creates a "difference" which some could describe as "substantial," and that "substantial difference" might in any case justify the conclusion, therefore, that the local law does not concern the same subject matter.
Being a limitation upon legislative authority, § 105 clearly means just the opposite of what the Court in State ex rel. Brandon v. Prince, supra, held that it meant. In the quotation we have noted earlier, that Court placed more emphasis upon the efficacy of local laws, and less upon that of general laws, than § 105 obviously intended to give them, for the Court stated "[i]f we should hold that, merely because there is a general law . . .."
Thus, in this case, the legislature had already enacted a statute of statewide application on the general subject of municipal immunity for torts. Title 37, §§ 502-504, making municipalities liable in tort, was originally enacted as a general law in 1907. Judicial limitation of its application was eliminated by judicial decision on July 10, 1975 when this Court overruled prior decisions construing the legislation to prohibit suits against cities when engaged in a governmental function. Jackson v. City of Florence,
But the defendant insists that any objection to the character of § 660 has been resolved by subsequent legislative action and judicial opinion thereon. Specifically, we are referred to the adoption of Title 62 (including § 660) as a part of the entire Code of 1940 which was adopted by the legislature in a single act. In Jenkins v. State,
However, we must take particular note of the fact that the body of local acts present in the Alabama Code of 1940 (Recomp. 1958) and enacted since that Code's original enactment were not adopted by the legislature when it enacted the Code of Alabama 1975. See Tables, Vol. 2, Code of Ala. 1975. This action removed from the statewide influence of the Code of 1940 any legislation which may follow the enactment of the Code of 1975 and which is local legislation by constitutional definition.
Therefore we respectfully direct the legislature's attention to the fact that § 110 of the Alabama Constitution mandates the definition of a local law. It is one "which applies to any political subdivision or subdivisions of the state less than the whole; . . ." (emphasis added). Applies when? Obviously, when it becomes law! If, when it becomes law it applies only to a subdivision of the state, it is a local law. That is the clear meaning of the language employed by our constitutional framers. In the face of this plain language, to conclude that the application of a law to less than the entire state makes no difference when a futuristic population classification is employed is to engage in sophistic reasoning. We reject such reasoning in favor of the clear definition of a local act which is contained in the Constitution. A population classification cannot be utilized in the future to avoid the definition of a local act.
We are mindful of prior decisions which have approved enactments based upon population classifications when the classifications were found to be "substantial," were not "arbitrarily" fixed, and were based upon a "reasonable necessity" for the several classifications. E. g., Dearborn v. Johnson,
With deference to those members of this Court who in the past have been concerned that such a construction would impinge upon the legislative power to enact local legislation, we must observe that such is not the case. As we have shown, our Constitution *815 authorizes local legislation, and sets out a procedure for its enactment. Under that authorization local legislation reflecting responses to local needs may be enacted. It is only when those local needs already have been responded to by general legislation that § 105 of our state Constitution prohibits special treatment by local law.
Because the trial court erred in granting the defendant's motions to dismiss the plaintiffs' complaints, these cases must be reversed and remanded.
REVERSED AND REMANDED.
TORBERT, C. J., concurring specially.
MADDOX, FAULKNER, JONES, ALMON, SHORES and EMBRY, JJ., concur.
BLOODWORTH, J., concurring in part, dissenting in part.
TORBERT, Chief Justice (concurring specially):
I concur in the result based upon the denial of equal protection under the law as to these plaintiffs.
As I understand the majority in its interpretation of §§ 105 and 110 of the Constitution as applied to the issues in these cases, this decision will have prospective application. That is, with respect to statutes heretofore enacted by the Legislature their constitutionality would be measured by those elusive standards heretofore set forth in the many decisions of this court over the past seventy years. The principle of prospective application is not of recent vintage, but was recognized by this court as early as 1890. Farrior v. New England Mortgage Security Co.,
The Legislature is now in its last regular session of the members' term of office. In order to accord that body the effect of the principle of stare decisis as they represent the people in legislative matters it would seem preferable to make this decision effective upon the conclusion of this regular session. This would allow time for that body to publicly advertise for passage of local legislation where permissible, undertake a careful study as to the effect of this decision, and embark on its legislative process at the beginning of its first regular session at the next term of the Legislature under this settled construction of our Constitution.
The constitutional issue as to whether any general law of local application based upon population is a local law under § 110 of the Constitution is clearly presented. That issue is now decided, and the law henceforth should be well settled. However, further judicial refinement and interpretations in other cases may well be necessary with respect to the application of § 105 prohibiting the Legislature from enacting local laws where the subject matter has been "provided for by a general law."
BLOODWORTH, Justice (concurring in part, dissenting in part.)
I concur only in so much of the Court's opinion which holds that § 660, Tit. 62, Code of 1940, is unconstitutional because it violates the equal protection clause of both the federal and state constitutions. This is as much as the Court needs to say, and as far as the Court needs to go, to decide this case, in my judgment.
Thus, I cannot join the Court in the remainder of its decision, and I respectfully dissent therefrom. For over 70 years this Court has been committed to the proposition of upholding general acts of local application. Parrish v. Stembridge,