41 So. 903 | Ala. | 1906
Lead Opinion
— Under the act “to establish a charter for the city of Troy in Pike county” (Acts 1869-70, p. 123), all the powers and jurisdiction of a justice of the peace in civil and criminal cases, within the corporate limits, were conferred on the mayor; and “exclusive original jurisdiction to hear, adjudge and determine all suits, prosecutions or other proceedings for the violation of the charter, bv-laws or ’ ordinances ’ of the corporation. Jurisdiction ivas also conferred upon him of “all proceedings by motion, scire facias, or other suits on any penal bonds payable to the mayor, taken under the act or ordinances of said corporation, including proceedings and suits of the officers of the corporation and the sureties on their official bond,' for the nonpayment of taxes or other moneys collected or íeceived, or for other delinquencies or defaults in office.” — Acts 1869-70, p. 127, § 12. By the act establishing an inferior court of criminal and quasi criminal jurisdiction, to be known as the “recorder’s court,” and providing a judge therefor, approved March 4, 1901, exclusive jurisdiction is conferred upon that court “of all offenses against the by-laws and ordinances passed and ordained by the mayor and councilmen of Troy, within the territory-embr'aced within the police jurisdiction of said city, and of all misdemeanors,
It will he observed that no reference whatever is made in. this act to the charter act. It does not assume in terms to revise, alter, or amend that act, or any section of it. The act itself is complete, and its meaning and scope plain and apparent. While its effect was to alter or change to a certain extent an existing power conferred on the mayor, that effect was produced by the later act, repealing pro tanto, by implication, the section of the charter act which conferred it, and not by anything on its face evincing that it was of an amendatory character. In other words, it is an independent act of legislation, and repeals by necessary implication because inconsistent with that provision of the chai ter act conferring jurisdiction on the mayor. To this extent, and only to this extent, did it change or alter that act. A repeal is one thing, and an amendment is quite another and different thing. A repeal of a statute involves necessarily a change in the law; and this is true, whether it be the only statutory enactment on the subject dealt with in the repealed act. Would any one contend that a statute in derogation of the common law was an amendment of it, simply because it altered or changed it? We think not.. If not, it cannot be asserted with ■any show of logic that because an independent act, full and complete within itself; repeals by implication any portion of a statutory system, it is amendatory of the remaining statutes of that system, to which no reference
The jurisdiction to try offenses against ordinances of the municipality, civil cases, -and offenders violating the criminal laws of the state, conferred upon some municipal officer, is not necessary to the -act of incorporation. An independent act, conferring jurisdiction of offenses against city ordinances and of offenses against- the criminal laws of the state upon any other judicial tribunal, would not offend the Constitution or charter act creating and conferring corporate powers .upon the municipality; and where such a tribunal was established, as here, by an independent act, the corporate powers granted the municipality were neither enlarged nor diminished by it. It is true the jurisdiction of the mayor of the municipality was diminished because his right to try certain offenses was taken away; but we apprehend this did not affect the corporate powers- of the municipality. His right to> exclusive jurisdiction as a court was not derived from the corporation, nor as mayor was he virtute offici possessed with such a right. This being-true, the repeal effected by the act creating the inferior court, known as the “recorder’s court,” in no proper sense amended the charter of the corporation. That act
These views are in full accord with, and are supported and sustained by, all the decisions of this court except the case of Little v. Huey, 137 Ala. 659, 35 South. 134, from which the writer dissented. In Ex parte Pollard, 40 Ala. 77, the question was presented whether an independent act, which repealed by implication certain other statutes, was an amendment of those statutes ' within the meaning of the constitutional prohibition that “no law or any section of any law, shall be revised or amended by reference to its title and number; but the law or statute revised or amended shall be set forth at full length.” The court held that it was not. It was then said: “The law is not void because it amends or revises other laws. It only repeals laws contravening its provisions. Its effect is analogous to repeal by implication. It was never intended by the Constitution that every law which would affect some previous statute of variant provisions on the same subject should set out the statute or statutes so affected at full length. * * * The constitutional provision reaches those cases where the act is strictly amendatory or revisory in its character.” In City Council of Montgomery v. Birdsong, 126 Ala. 647, 28 South. 522, it was said: “Nor does the enactment offend that other provision of said "section of the state Constitution, touching the revision, amendment, and extension of laws. That provision has been repeatedly held to apply to statutes strictly amendatory, and not to such as are independent and complete Avithin themselves, although they adopt by reference merely the provisions of other statutes on the same subject, there appearing in more enlarged and extended form.” See, also, Sisk v. Cargile, 138 Ala. 164, 35. South. 114; Thomas v. State, 124 Ala. 54, 27. South. 315; Cobb v. ■ Vary, 120 Ala. 263, 24 South. 442; Bates v. State, 118 Ala. 102, 24 South. 448; B. U. Tty. Co. v. Elyton Land Go., 114 Ala. 70, 21 South. 31b; Ex parte Thomas, 113 Ala. 1, 6, -21 South. 369; State ex rel. v. Rogers, 107 Ala. 444, 19 South. 909, 32 L. R. A. 520; Candy v. State, 86
It is also a well-settled rule of construction that a word or phrase repeated in a statute or Constitution will bear the same meaning throughout the statute or Constitution unless a different intention appears.—2 Lewis’ Sutherland, Stat. Cons. § 399. Has the word “amending,” used in subdivision 18 of section 104 of the present Constitution, a different signification from the word “amended,” as used in section 45 of the same instrument, and, indeed, in the same article of the same instrument? The language of the latter section is: “No law shall be revised, amended or the provision thereof extended or conferred by reference to the title only.” The language of the former is: “The Legislature shall not pass a spcial, private or local law in any of the following cases: * * * Amending, conferring or extending the charter of any private or municipal corporation,” etc. Both are prohibitions against legislative action with respect of laws which could be exercised if they did not obtain. There, is clearly nothing in the language of the
Having shown that the recorder’s court act was not an amendment of the charter act, within, the meaning of the constitutional prohibition against amending municipal charters by local laws, it necessarily follows that the act repealing the recorder’s court act, approved October 6th, 1903 (Loc. Acts 1903, p. 512), after the adoption of the present Constitution, is not offensive to that provision. It is true this act is a local one, but no objection is taken to its constitutionality upon any other ground than that it is violative of subsection 18 of section 104. And this contention of necessity proceeds upon the theory that it repeals an amendatory act-the recorder’s court act- -of the charter of the city of Troy,, and in that way amends the charter, by taking from it that which the recorder’s court act added to it. The case of Little v. State ex rel. Huey, supra, is directly opposed to the principles we have declared, and -must be overruled.
The judgment appealed from will be reversed, and one Avill be here rendered excluding the respondent from the illegal exercise of the functions and powers formerly conferred by the recorder’s court act.
Reversed and rendered.
Dissenting Opinion
— The mayor and councilmen of Troy is a municipal corporation, by. virtue of an
Under the Constitution of 1875 “the Legislature had plenary power to alter, amend, withdraw, or repeal at pleasure, either by a general law, operating upon the whole state, or by special statute, the charter, or any particular authority conferred on a municipal corporation.”—City Council of Montgomery v. Shoemaker, 51 Ala. 114; Little v. State, 137 Ala. 659, 35 South. 134. Did the act of March 4, 1901, have the effect to amend, alter, change, or extend the charter of the municipal corporation, mayor and councilmen of Troy? It would seem that there could not have been a more effectual amendment of the charter if the act of 1901 had expressly repealed that part of section 12 of the original act which conferred on. the mayor jurisdiction to hear, adjudge, and determine prosecutions for violations of the by-laws and ordinances of the city. There can be no reconciliation of the two acts with respect of the jurisdiction of the mayor and that of the recorder’s court. By the original act the jurisdiction is conferred on the mayor. By the act of 1901 the recorder’s court is created, and the exclusive jurisdiction is conferred on it of all offenses against the by-laws and ordinances of the city, .and the presiding judge of said court—the recorder—is an official of the city, and a distinct individual from the mayor. So there can be no question that it was intended by the enactment of the act of March 4, 1901, to take away from the mayor the jurisdiction to hear and determine prosecutions for violations of the by-laws and ordinances of the corporation and establish a court with such jurisdiction to be presided over by a recorder. And we think there can be no doubt that the act is in effect an amendment of the charter of the corporation.—Little v. State, 137 Ala. 659, 35 South. 134; State v. Rogers,
The Legislature at the session of 1903 passed an act repealing the act of March 4, 1901, above referred to. The repealing act was approved October 6, 1903.—Loc. Acts 1903, p. 512. It is insisted that the repealing act was enacted in violation of section 104 of the Constitution, which provides that “the Legislature shall not pass a special, private or local law in any of the following (31) cases,” the eighteenth of which, is, “Amending, confirming or extending the charter of any private municipal corporation,” etc. That the act of October 6, 1903, is a local act within the definition given of a local act in section 110 of the Constitution, seems too plain for argumentation. Having reached the conclusion that the act of March 4, 1901, is an amendment of the charter of the municipal corporation, then, if the act of October 6, 1903—the repealing act—is to operate as an amendment of the charter of the corporation, it seems that the insistence that it was not constitutionally, enacted should prevail. While the word “amend,” in legal phraseology, does not generally mean the same thing as “repeal,” “it does not follow that amendments of a statute may not often be accomplished by repeals of some of its parts, and in this way to better the condition, and change from bad to better.” As the act of March 4,1901, operated as an amendment of the charter of the corporation, and thereby became a part of the charter, I think it is consistent with reason and entirely logical to say that an act repealing the act of 1901 would operate as an amendment of the charter of the corporation. This view, it is conceded in the majority opinion, finds support in the case of Little v. State, supra. But by the majority opinion that case is overruled. I think the case asserts sound doctrine and should stand as authority.
My conclusion is that the effect of the act of October 6, 1903, in repealing the act of March 4, 1901, would be to amend the charter of the corporation, and, consequently, that it was not. constitutionally enacted.—Section 104 of the Constitution. Therefore I dissent from