40 So. 2d 427 | Ala. | 1949
This is a suit filed by appellees, who are attorneys-at-law, to have determined a controversy between them and appellant as director of the State Department of Docks and Terminals in respect to attorneys' fee claimed by them to be payable under a contract with the director for services in connection with the preparation of an act for the legislature and the legal aspects of a bond issue under it for the enlargement of the State docks at Mobile. The proposed act was considered by the justices as reported in Opinion of the Justices,
The trial court made declaration favorable to complainants, and the director appeals. Some preliminary questions are raised.
It is first insisted that it is a suit against the State prohibited by section 14 of the Constitution. But all the incidents of a justiciable controversy exist whereby an officer of the State is uncertain in the discharge of his duties as to whether he should pay out of funds under his control and held for the payment of expenses of conducting the department, the claim for such attorneys' fee made by appellees. We have held that such a suit is for the guidance of the parties in the discharge of their duties, although they are State officers, and does not violate section 14, supra. Curry v. Woodstock Slag Corp.,
But it will be presumed that this was done at a regular call, and that both parties were present, and no objection being noted consent of all parties will be presumed.
This rule grew out of old chancery procedure, whereby a complainant (but not respondent) could require a submission on bill and answer, without a replication (which had not then been abolished, see Equity Rule 27), and without proof. 1. Daniell's Ch. Pl. Pr., 6th Ed., sections 828, 829, pp. 822, 823. Under the old rule any matter set up in the answer was admitted by a submission on bill and answer without a replication denying it, *348
which replication put the burden on defendant to prove it. But by the abolition of a replication in equity, it is now taken as though such matter were denied and defendant must prove it. See, Equity Rule 25. So that if respondent is willing, there is no reason why complainant may not submit on bill and answer. Cox v. Dunn,
The answer of defendant admits the material allegations of fact stated in the bill, but does not concur in the conclusions of law. The decree on demurrer and the final decree are assigned as error, and the defendant has cross assigned errors for that the decree did not respond to one contention.
Appellees claim that the effort to limit the attorneys' fee to be paid in connection with the bonds and the drafting of the act, as set forth in section 7 1/2 of the Act of July 24, 1947 (see General Acts of 1947, p. 74), contravenes section 22 of the Constitution, in that it would impair the obligation of their contract, and violates section 45 of the Constitution because the subject matter of said section is not clearly expressed in the title, and adds another subject.
Of course to be protected by section 22, supra, plaintiffs must have had a valid binding contract, which imposed an obligation. They rely upon a part of Title 38, section 10, Code, whereby it is provided that "the director shall appoint a secretary-treasurer and as occasion requires may appoint such employees, attorneys, and experts as may be necessary to perform all services needed in the management, operation, and control of the docks and terminal facilities provided for in this chapter." Also that part of Title 38, section 3, as amended July 7, 1945, as follows: "All the powers, authority and duties vested in the department of state docks and terminals and any powers, authorities and duties hereafter vested in the department of state docks and terminals, shall be exercised by the director of state docks and terminals." See, Pocket Part, Title 38, section 3, Code.
It is necessarily contemplated that the director shall contract obligations for the ordinary operation of so large a business. If it is for an amount exceeding $5000, it must be approved by the governor. Title 38, section 36, Code. This obligation was so approved. The authority generally to make contracts of the sort is recognized in State Docks Comm. v. Barnes,
Section 22, Constitution, does not simply inhibit the State from impairing the obligation of contracts between individuals, but with like force and effect the provision applies to contracts made by the State or one of its agencies when authorized by law. Fletcher v. Peck, 6 Cranch, U.S., 87-137,
In the case of Hard, Comptroller v. State ex rel. Baker,
"Thus in Stevens v. Thames,
"We quote the following from Birmingham Mineral Railroad Co. v. Parsons,
But in State of Indiana v. Brand,
"Our decisions recognize that every contract is made subject to the implied condition that its fulfillment may be frustrated by a proper exercise of the police power but we have repeatedly said that, in order to have this effect, the exercise of thepower must be for an end which is in fact public and the meansadopted must be reasonably adapted to that end, and the Supreme Court of Indiana has taken the same view in respect of legislation impairing the obligation of the contract of a state instrumentality. The causes of cancellation provided in the act of 1927 and the retention of the system of indefinite contracts in all municipalities except townships by the act of 1933 are persuasive that the repeal of the earlier act by the later was not an exercise of the police power for the attainment of ends to which its exercise may properly be directed." (Italics ours.)
See, also, First National Bank of Birmingham v. Jaffe,
Any interpretation we should make in that connection of that feature of our section 22, Constitution, would be subject to section 10, Article 1 of the Constitution of the United States. So that notwithstanding our earlier ideas of the binding force of such contracts in respect to subsequent legislation, we must apply the construction which the United States Supreme Court has given to section 10, Article 1 of the United States Constitution. This principle was recognized in Hard v. State ex rel. Baker, supra, and thought to be there given effect.
So that the question is whether section 7 1/2 of the Act of 1947, supra, fixing a maximum of $2500.00 for the payment of services of attorneys rendered pertaining to the act or the issuance of bonds under it is an exercise of the police power for an end which is in fact public, and whether such limitation is a means reasonably adapted to that end.
This is illustrated in Home Building Loan Ass'n v. Blaisdell,
It is also said in Worthen Co. v. Thomas,
There is nothing set out in the Act of 1947, supra, nor alleged in the answer which shows that section 7 1/2 of the Act was inserted to meet some urgent public need, and we have no judicial knowledge of such need. It appears only as a retrenchment measure apparently directed to an impairment of the obligation of appellees' contract. That is no such need as justifies an exercise of the police power.
While the quotation in the Hard case, supra, from Stevens v. Thames,
In the case of Newton v. Commissioners,
This Court, citing Fletcher v. Peck, supra, held in Slaughter v. Mobile County,
It is our view that section 7 1/2 of the Act of 1947, supra, cannot serve to impair the obligations of the contract alleged in the bill to have been made. Its existence as a fact is admitted in the answer.
The title of the Act provides for the expansion of the port facilities, to borrow money and issue bonds and sell them, and "to provide the purposes for which such money may be borrowed" and also contains other details. This Act without section 7 1/2, supra, was involved in the question submitted to us by the Governor, and which was answered as reported in Opinion of the Justices,
The contract between appellees and appellant, was made April 26, 1947, before the proposed act was introduced for passage. The fee does not purport to be payable out of funds derived from the powers conferred by the Act.
We are not confronted with the question of whether a feature of the Act which provided for a maximum amount, which could be used out of such fund in the payment of attorneys' fees, would violate section 45, supra, without specially so stating in the title.
The rule is that if the bill contains but one subject which is clearly stated in the title any matter which is germane to that subject may be validly included. Ballentyne v. Wickersham,
It seems very clear to us that insofar as section 7 1/2, supra, undertakes to limit the amount of attorneys' fees payable under contract, not specially out of funds derived under the Act, but out of any funds of the State or any of its agencies, to that extent it is not germane to the one subject expressed in the title and provided for in the Act.
We think therefore that the inclusion of section 7 1/2, supra, violates section 45 of the Constitution, but its exclusion on that account does not affect the validity of the Act in respect to the one subject included.
As modified, the judgment is affirmed.
STAKELY, J., concurs in the opinion.
BROWN and LIVINGSTON, JJ., concur in the result, and base their concurrence on an application of section 22 of the Constitution by reason of the admitted allegations of the bill contained in the answer.
LAWSON and SIMPSON, JJ., concur in the result and base their opinion on an application of section 45 of the Constitution to section 7 1/2 of the Act of July 24, 1947, supra.