Rayford v. Faulk

45 So. 714 | Ala. | 1908

DOWDELL, J.

The appeal in this case is prosecuted from the judgment of the circuit court overruling and denying a motion made by the defendant, the appellant here, to discharge the garnishment on the ground that the fund garnished is under the statute exempt from the claims of creditors. The first question presented is whether or not an appeal will lie from such a judgment. The .judgment is on an issue collateral to the main suit, and ordinarily an appeal in such cases would not lie. But under Code 1896, §§ 2204, 2205, we think the right of appeal exists. The judgment in its nature, upon the particular issue, is a final judgment. It determines that the fund garnished is subject to the plaintiff’s debt, and nothing remains to be done but to appropriate it to the payment and satisfaction of the plaintiff’s judgment in the main suit. — Steiner v. First National Bank, 115 Ala. 383, 384, 22 South. 30.

The other proposition, and the vital one in the case, raises the question of the constitutionality vel non of section 32 of the act approved February 18, 18997. Gen. Acts 1896-97, p. 1393 et seq. This act was copied into the Code of 1896 by the codifier, and forms chapter 63 of that ('Ode; but this was done after the act of adoption of the Code, passed and approved on the 16th of February, 1897. The act in question having been passed subsequent to the act of adoption of the Code, the fact that it was carried into the Code, being the act of the codifier, does not constitute it a part of the laws as codified and adopted, and therefore section 32 of the act, answering to section 2607 of the Code of 1896, must be construed with respect to its constitutionality the same as it was originally enacted, and without reference to the codification.

It is claimed that the act is violative of section 2, art. 4, of the Constitution of 1875, which provides that “each law shall contain but one subject, which shall be clenrly expressed in i Is title,” etc. The title of the act is as follows : “To regulate the business of insurance in the state of Alabama.” The act contains 39 sections. In the first section the terms “company,” “foreign,” “domestic,” and other terms and words, are defined. In the second section the term “contract of insurance,” is defined. Sections 3 to 8, inclusive, relate to the insurance commissioner, his powers, duties, etc. Section 9 relates to requirements put upon foreign and all other companies commencing to do and carry on business in the state; and each succeeding section, down to section 32, relates and pertains to the business of insurance companies and the regulation of the same in one form or another, imposing taxes, and in certain events penalties and forfeitures, etc. Then follows section 32, which provides “that any person may insure his own or her own life for the sole benefit of his or her estate, his wife or her husband, his or her children, or others as shall be provided in the policy of insurance, and the sum or amount of insurance becoming due and payable by the terms of the application and policy shall be exempt from all creditors of the assured or beneficiary, and must be paid to the beaeficiary so named in the policy or to his or her assigns.”

It is apparent from even a casual reading of this section that its subject and the sole purpose is one of exemption of property from the payment of debt. It in no proper sense relates to the regulation of the business of insurance, but is wholly foreign to that subject. It is true that the title to the act, “To regulate the business of insurance in this state,” is general and quite comprehensive; but it would never suggest to the common mind, or to the individual legislator, upon hearing it read, that legislation upon the subject of the exemption of property in favor of the debtor from the payment of debt was intended or contemplated. Manifestly the subject-matter of section 32 is not expressed in the title of the act, nor do we think it can in reason be said that it is cognate or referable to the subject contained in the title, or in any sense included in it, complementary or otherwise. Section 2, article 4, of the Constitution of 1875, has often been under consideration by this court; and when we apply the rule of construction and application of this section to legislation as laid down in Ballentyne v. Wickersham, 75 Ala. 533, which has been so often cited, followed, and approved, to the case before us, we cannot escape the conclusion that section 32 of the act in question is unconstitutional and void.

The foregoing, which expresses the views of the writer, is concurred in by Justices SIMPSON and DENSON. TYSON, O. J., and HARALSON, ANDERSON, and McCLELLAN, JJ., constituting the majority of the court, are of the opinion that section 32 of the act is cognate to and embraced within the subject expressed in the title, and so hold. It follows, from the holding of the majority of the court, that the judgment appealed from must he reversed.

Beversed and remanded.

Tyson, C. J., and Haralson, Anderson, and McClellan, hold that section 32 of the act in question is valid. Simpson and Henson, JJ., concur in the opinion of Dow-dell, J.