This аppeal brings under review the constitutionality of § 260, Title 7, Code of 1940, as amended. The amending act is No. 74, General Acts of Alabama, 1953, Vol. I, p. 103.
The amendatory act, hereafter quoted, is in material respects similar to old § 260, prior to thе amendment, except with the added proviso, which we will italicize, relative to ascertaining the plaintiff’s damagеs without a jury where the defendant is in default and the plaintiff had originally demanded a jury.
Act No. 74, now codified as § 260 of the Code, 1955 Cum.Pocket Parts, pp. 64-65, provides:
“An Act
“Relating to civil remedies and procedure; amending Section 260, Title 7, Code of Alаbama (1940), which provides for the trial of civil cases at law without a jury.
"Be It Enacted by the Legislature of Alabama:
“Section 260, Title 7, Code of Alabama (1940), is amended tо read as follows: ‘All civil cases at law shall bé tried and determined by the court without a jury unless the plaintiff indorses in writing his demand for a trial by jury on the summons and complaint, attachment, or other process or paper filed by him for the purpose of instituting the suit, or by filing a separate written demand with the clerk of the court at the commencement of the suit, or unless thе defendant or other party occupying the position of defendant shall demand in writing a trial by jury within thirty days after the perfеction of service on him, or unless the claimant shall demand in writing a trial by jury at the time of the filing of his claim. On defendmfs default, the рlaintiff may withdraw his demand for a fury, if any, and have his damages ascertained by the court without the intervention of a jury. Either party to a civil cause tried by the court without the intervention of a jury may present for review the conclusions and judgment of the court on the evidence and the court of appeals or supreme court shall review the same without any presumption in favor of the court below, either on the rulings on the law or conclusions on the evidence, аnd if there be error, shall render such judgment in the cause as the court below should have rendered or reverse and rеmand the same for further proceedings in the trial court as the court of appeals or supreme court may deem right. The finding of the court on the facts shall be subject to review without an exception thereto.’ ” (Emphasis supplied.)
As stated, the italicized portion above which was added to old § 260 is the only material change in that section.
In thе case at bar, the plaintiff had demanded a jury, but the defendant was in *543 default, and pursuant to the added proviso, suprа, plaintiff withdrew his jury demand and the court ascertained his damages without a writ of inquiry to the jury. This appeal seeks to test thе constitutionality of the section as amended.
The proposition advanced for a reversal is that Act No. 74, аmending .old § 260, is unconstitutional as violating that part of § 45 of our Constitution which stipulates that “each law shall contain but one subject, which shall be clearly expressed in its title. * * * ” The argument runs that the amendatory matter, rather than having been embodied in § 260, should have been in § 265, Title 7, which provides:
“§ 265. * * * Failure to demand jury, waiver of right. — The failure to demand in writing .a jury trial as herein provided shall be deemed and held a waiver of the right to a trial by jury, and either party demanding a trial by jury shall not have the right to withdraw such demand without the consent of the opposite party.”
The case has been well argued by able counsel, but we are in disagreement with the contention. No doubt the amendatory matter could well and properly have been placed in § 265, but incorporating it in another section where it is also germane to that section does not mаke the section bifurcate as to subject matter. As we read old § 260, it related to a subject where the added matter is manifestly immanent therein.
The rule is that the title of an act which purports merely to amend a certain section of the Code, cannot, conformably with § 45, add a new and different subject. Dorsky v. Brown, 1951,
But the expression in Kendrick v. Boyd, 1951,
“To be sure, the question posed could bе a somewhat debatable one were we to enforce with hypercritical exactness the said constitutional prescription [§ 45]; but the rule is to the contrary. The court is committed to the principle that this requirement of the Cоnstitution is ‘not to be exactingly enforced or in such manner as to cripple legislation,’ but should be accorded а liberal interpretation.”
The subject of legislation in a proposed statute amending a Code section, identifiеd in the title by the number of the section, is the subject matter of the section to be amended. The amendment incorpоrated in the new section may deal with any feature of the section to be amended. The test is that the amendment must be germane to the section being amended. When a bill by its title purports to amend a numbered section of the Code, the attention of the legislator is directed to the statute, thus identified, and he may expect the amendment to deal with аny feature of the existing section. State ex rel. Farmer v. Haas, 1940,
In Yeilding v. State,
Finally, the oft repeated rule, that the power of striking down a legislative enactment is a delicate one, one to be used with great caution and only when the court is convinced of its unconstitutiоnality beyond a reasonable doubt. Kendrick v. Boyd, 1951,
*544 Applying the above well known canons of constitutional construсtion to the case in hand, we conclude that § 260 of Title 7, .as amended, is not violative of § 45, Alabama Constitution. The subject matter of old as well as amended § 260 is the trial and appellate review thereof of civil proceedings аt law by the court. The amendatory matter relates to a trial by the court where the defendant defaults. We regard it, therefore, as germane to old § 260, and as aforesaid it does not contravene § 45 of our Constitution.
Affirmed.