Tuskaloosa Bridge Co. v. Olmstead

41 Ala. 9 | Ala. | 1867

A. J. WALKER, C. J.

On the 3d February, 1866, an act was approved, which is entitled, “An act to amend an act to incorporate a company to build a bridge across the Warrior river opposite the city of Tuskaloosa, approved January 2, 1833.” The act approved on the 3d February, 1866, consists of a single section, which directs that the act recited in the title “be amended by additional sections, numbered and worded ” in a specified manner, and that those additional sections should, “for all purposes, be deemed and held as a part of the original act, to the same extent, and in the same manner, as .if the same had been incorporated therein at the time of its passage.” Then follow the three sections, numbered 11, 12 and 13, to be added to the original act. Those sections do, in fact, amend the act of January 2d, 1833. The later act does in fact amend the older. It is represented in its title as an amendment. It declares an express purpose to amend, and directs that the additional sections shall be deemed and held an amendment. It does not set forth the law amended, but refers to it by its title. The question thus arises, whether it contravenes the second section of the fourth article of the State constitution, and if it does, whether it is therefore void.

The language of the constitutional provision is as follows : “No law, nor any section of any law, shall be revised or amended by reference only to its title and number, but the law or section revised or amended shall itself be set forth at full length.” In the cases of Ex parte Pollard, and Ex parte Woods, (39 Ala. 77,) we used the following language, in reference to the meaning and effect of this clause: “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. If this were so, it would be impossible to legislate. The constitutional provision relates to those cases, where the act is strictly amendatory or revisory in its character. Its prohibition is directed against the practice of amending or revising laws by additions, or other alterations, which, without the presence of the original, are usually unintelligible. If a law is in itself complete, and original in form, it does not fall within the meaning and spirit of the constitution.”

The act under consideration most clearly comes within the scope of the clause of the constitution thus construed. It is in form, not original, but amendatory. It is placed in the legal attitude of being incorporated in additional sections in the original act; and its full effect can not be determined, without reference to the original act; for the entire operation of one or more provisions of an act can not be safely pronounced, without an examination of the others, with which, as parts of a whole, they are to be compared and construed. The act here is not in parallelism with those which, aiming at original legislation, affect some older law upon the same subject, merely because it happens to contain some different provision. The act in question is declared by the legislature to be an amendment. It is named and baptized by its authors an amendment. It falls actually, and by profession, in substance and in form, within the constitutional provision. A judicial exclusion of such an act from the prohibition of the constitution, would practically disregard its mandate. While it remains, it is our duty to enforce it, whether wise or unwise, convenient or inconvenient.

We have given careful attention to the argument, that the clause of the constitution under consideration is a mere rule of legislative proceeding, and does not render void a law not conformable to it. An anxious desire to allow effect to the will of the legislature, and to avoid a seemingly harsh visitation of a rule, the usefulness of which is hardly proportionate to its inconvenience, induced us to prolong our advisement on the case, with the hope of discovering reason or authority which would lead us to the support of that argument. But it still seems to us that the clause raises a question of legislative power, and is not a mere rule for the government of the general assembly in its proceedings. The prohibition is emphatic, that no law shall be revised or amended, except in the mode specified. This is a command, not specially, or professedly, addressed to the legislature alone. It is as general and comprehensive as any prohibition in the constitution. It is binding upon the executive, who approves or disapproves bills, and upon the judiciary, who declare the law, as well as upon the legislature. What warrant can there be, then, for the position, that it is simply a rule for the guidance of the legislature ? When the constitution says no law shall be amended, save in a specified manner, can the legislature say a law may be and shall be amended in a different manner ? The case is, to our minds, a plain one of irreconcilable conflict between the paramount law of the constitution and the enactment of the legislature. "When such a conflict is clearly presented to the judicial mind, the constitution must prevail.

Similar constitutional provisions are found in several other States; and the decisions, except in California and Ohio, concur in holding contravening acts void.—People v. Laurence, 36 Barb. 177; Sharp v. May, 31 Barb. 572; Brewster v. City of New York, 19 N. Y. 116; Bibb County Loan Association v. Richards, 21 Ga. 592; Davis v. State, 7 Md. 151; Commonwealth v. Drewry, 15 Grattan; Johnson v. Higgins, 3 Metcalf, 567; 4 La. Ann. 297; 5 ib. 94, 91; 11 ib. 722; 15 Texas, 311. In California, and in Ohio, the constitutional provision is regarded as merely directory.—Lehman v. McBride, 15 Ohio St. 573; Pim v. Nicholson, 6 ib. 176; Pierpont v. Crouch, 10 Cal. 315. The language of the Ohio constitution is somewhat different from ours, and that probably lessens the value of the decisions in that State as an authority here. The decision in Ohio is examined in The People v. Laurence, (supra,) and we entirely concur with the opinion in that case, that it is not allowable to set aside the obligation of a constitutional provision as directory.

There are, it must be conceded, regulations in the constitution, which are mere parliamentary rules, a want of conformity to which would not make a law void.—People v. Board of Supervisors, 27 Barb. 575. But the clause we are considering can not be classed with them. It is a restriction upon power. It takes away the authority to amend, except in a particular mode. It does not prescribe in what form, or by what rules, the legislature must act; but it prescribes what a law of a certain character must contain. It exacts that a law, amending another, must contain the law amended. The legislature can not dispense with this requirement. The inference of the purpose to guard the legislature against imposition and misapprehension and mistake, when a bill is passing through the forms of legislation, does not oppose the conclusion, that a diminution of power was intended. A restriction upon authority to amend laws in any other than the prescribed manner is the most effective mode of compelling an avoidanee of the evils contemplated. But it does not seem that the only good sought to be accomplished is effected when the legislature has acted. It is also important that the governor, in deciding whether he would approve or veto an amending bill, should be informed of the law proposed to be amended; and it is at least a convenience, that all who act under a law amending another, should have both presented together. It is, therefore, a mistake to suppose, that the clause of the constitution accomplishes all its purposes, and exhausts its beneficence, while a bill is passing through the stages of legislation. It therefore cannot be a mere parliamentary rule. It was not designed, like a parliamentary rule, to operate exclusively upon the legislature, and only to govern them in the discharge of their duties; and our argument cannot be affected by the concession of the principle, that non-conformity to established rules of the general assembly does not make its enactments void. To have the law amended and the amending law presented in juxtaposition, facilitates the comprehension, and consults the convenience of all who examine the law after its enactment, as well as of the legislature, which examines on its passage. From the effect of the constitutional clause it may be argued, that its purpose was to assist and protect the legislature against misapprehension; but, in the same mode, the purpose to assist and protect others may be inferred. It therefore can not be, that no other operation was intended than the assistance and protection of the legislature by affording a conservative rule for its guidance.

While the question is not in words decided in Ex parte Pollard, (supra,) there underlies the argument of the opinion in that case, an admission that a law infringing the provision of the constitution would be void.

The constitution (Art. 1, § 1) expressly declares, that all laws contrary to its provisions shall be void. The amending act here is obviously contrary to a provision of the constitution. The amending act does not contain the act amended; and if it is not void, we have what the constitution says shall not be.

What we have said shows, that the complainant had no ferry franchise, derived from the act of the legislature. The bill in chancery is, therefore, without equity, so far as any right based on the act of the legislature is concerned. The bill is equally without equity in respect to a ferry franchise granted by the commissioners’ court, for the period of that grant had expired. The allegations of the bill show no right to the ferry predicated upon long possession and enjoyment. The complainant showing no right to the ferry franchise on any ground, the bill was without equity.

The decree is affirmed.

JUDGE, J.

I cannot concur in the conclusion attained by the majority of the court, on one question involved in this case, and feel it incumbent upon me to state briefly some of the reasons which induce me to dissent.

The second section of the fourth article of the State constitution prescribes certain rules for the government of the legislative department in the enactment of laws. They are as follows : “All laws shall be passed by original bill, and their style shall be, Be it enacted by the senate and house of representatives of the State of Alabama, in general assembly convened. Each law shall embrace but one subject, which shall be described in the title; and no law, nor any section of any law, shall be revised or amended by reference only to its title and number, but the law or section revised or amended shall itself be set forth at full length.”

These fundamental rules are not directory merely — such as may be observed by the legislative department, or not, as may suit their convenience or pleasure. They are mandatory, and as binding upon the legislative department, as any constitutional injunction can be.- But, being rules of procedure only, prescribed for, and directed to, the legislative department exclusively, their observance and enforcement must depend alone upon the judgment and conscience of the individual members of that co-ordinate and co-equal department of the government.

I concede the power to the judiciary to declare constitutional law, and in cases where statutes, as rules of action, are violative of the constitution, to override the express will of the legislature. Life, liberty, and property, sometimes depend upon the wholesome exercise of this power, and I would not abridge it. It is a high prerogative, legitimately belonging to the judiciary; and in the United States, where legislative bodies are not, like the parliament of Great Britain, omnipotent, it rests upon sound reason and the highest authority.

But no such question is here involved; it is a question of correct legislation only, that is presented for our decision; it is, whether a parliamentary rule, prescribed by the constitution, and applicable only to bills in their passage through the legislature, has been observed or disregarded by the law-making power? Has the judiciary the power to determine such a question, unless it be expressly conferred by the constitution ?

The powers of the State government are divided into three distinct departments, each of which is confided to a separate body of magistracy. The power of legislation being vested exclusively in the legislative department, they must, of necessity, be the sole judges of what is merely correct legislation. One, and but one, exception is made in the constitution, which I shall presently notice. If this be not a correct proposition, what becomes of the second section of the third article of the constitution, which declares that, “No person, or collection of persons, being of one of these departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted ?” Can the judiciary step into the legislative department, on a question involving only the correct manipulation of the machinery of legislation, and supervise and control it? I have been unable to find language in the constitution, either “expressly directing or permitting this to be doneand, in my opinion, the judiciary cannot do it, without erecting themselves “into a co-ordinate political authority, and becoming practically associated with the law-making department,” in violation of the express prohibition of the constitution.

The courts of the country have been prompt to recognize the boundaries which separate the legislative from the judicial power, when encroachments have been made by the former upon the latter.—Sedg. on Con. Law, 167—170. They should be equally as prompt to recognize the exclusive powers of the legislative department. As has been said by a distinguished author, in treating of the enlarged and generally conceded powers of the judiciary in declaring constitutional law: “Let the magistrate be contented with his large authority, and let him not, by endeavoring to extend it, endanger the power that he now securely possesses. The judicial department should be the most vigilant by its example to resist ‘that spirit of encroachment which tends to consolidate the powers of all the departments in one, and thus create, whatever the form of government, a real despotism.’ ”—Sedg. on Con. Law, 219.

I have stated, that there is one case in which the judiciary would have the power, the question being properly presented, to declare an act of the legislature invalid, for non-compliance with a constitutional requisition m its passage. The constitution declares, that “no bill shall have, the force of a law, until on three several days it be read in each house, and free discussion be allowed thereon, unless, in case of urgency, four-fifths of the house in which the bill shall be depending may deem it expedient to dispense with this rule.”—Art. IV, § 18. It is by force of the language employed in this section of the constitution—“no bill shall have the force of a law” — that the judiciary would be required, in the case stated, to declare that the act was not a law, and to deny to it all force as such; for the' constitution, in denying the force of a law to a bill passed in disregard of the requisites named, makes an injunction upon the judiciary department not to enforce it as a law. No such injunction exists as to that portion of the constitution which presents the main question under discussion. And from this, an additional argument may be adduced in support of my conclusion upon the main question — viz., that if the framers of the constitution had intended that no bill should have “the force of a law,” if passed in disregard of the second section of the fourth article, they would have so declared, as they did in reference to the second section of the third article; and having declared it in the one case, and not in the other, the inference is legitimate, that they did not intend the same result should follow, whether the non-compliance was with the one or the other.

The last clause of the last section of the bill of rights, declaring that all laws contrary to the provisions of the bill of rights, or the provisions following in the constitution, “shall remain void,” was not intended to apply to rules of legislative procedure, prescribed by the constitution. Otherwise, why was it subsequently declared that “no bill should have the force of a law,” unless passed as directed ? This was a nugatory provision, if the last clause of the bill of rights accomplished the same purpose. The character of the “provisions” preceding this clause, to which it applies, is a clear indication of the character of the provisions following, to which it was intended it should be applied, viz., to provisions of latos, in and of themselves, as rules of action. Any other construction, it seems to me, is unwarranted by the phraseology itself of the clause, and unsound.

I do not feel concluded by any decision of this court, heretofore made, relating to the effect of the constitutional provisions under consideration. Neither in Ex parte Pollard and JEx parte Woods, nor in any other adjudication of this court, was the precise question here involved, considered and decided. The doctrine of stare decisis, therefore, does not apply.

I deem it unnecessary to say more, though the conclusion attained by myself upon the question decided by a majority of the court, might be strengthened by other arguments, especially by some of those suggested in the briefs of the able counsel for the appellants.