Mayor of Ensley v. Cohn , 149 Ala. 316 ( 1907 )

DOWDELL, J. —

This case was tried in the court below on an agreed statement of facts. The question presented for our consideration involves the constitutionality of two acts of the Legislature, viz: (1) “An act to amend section 1 of an act approved March 2, 1901, entitled ‘An act to amend section 1 of an act entitled “An act to establish a new charter for the city of Ensley in Jefferson county, Alabama,” ’ ” approved February 28, 1903. Loc. Acts 1903, p. 107. (2) An act entitled “An act to alter or rearrange the boundaries of the city of Ensley, Jefferson county, Alabama,” approved September 30, 1903. Loc. Acts 1903, p. 692. By the agreed statements of facts it is admitted “that if either of the above-specified acts, approved, respectively, February 28, 1903, and September 30, 1903, is constitutional, defendant is guilty as charged; but, if both of said acts are unconstitutional and void, then the defendant is not guilty.”

The first objection raised to the act of February 28, 1903, relates to the, title. It is insisted that in this respect the act is violative of section 45 of the Constitution, which provides that “each law shall contain but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a Code, digest or revision of statutes; and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revised, amended, extended or conferred, shall be re-enacted and published at length.” The subject expressed in the title of the act in question is to amend section 1 of a former act, specified in the title. This has been repeatedly held by this court to be a sufficient compliance with, and not violative of, the constitutional provision. Section 1 of the act approved March 2, 1901 (Acts 1900-01, p. 1940), proposed to be amended by the act approved February 28, 1903, relates solely and exclusively to the territorial limits and boundary of the city of Ensley. Section 104 of the Constitution of 1903 provides: “The Legislature shall not pass a special, private, or local law in any of the following cases.” Then follows an enumeration of 31 cases, numbered in subdivisions from 1 to 31, inclusive. Subdivision numbered 18 reads as follows: “Amending, conferring or extending .the charter of any private or municipal corporation, or remitting the forfeiture thereof; provided, shall not prohibit the Legislature from , altering or rearranging the boundaries of any city, town, or village.” It is plain, from, the proviso contained in the foregoing subdivision 18, that it is left within legislative power to alter or rearrange the boundaries of any city, town or village.

The next question is whether the act in question is invalid by reason of a failure to comply with the provisions of section 10G in reference to the publication of notice of the intention to apply for the passage of the act. It is insisted that the territorial boundaries of the city of Ensley contained in the act as passed are not the same, but different from the boundaries contained in the published notice of the intention to apply for the act, and for this reason it is urged that no notice was given of an intention to apply for the act as passed, and that therefore there was a failure to comply with the requirements of section 106. In construing section 106 in connection with sections 104 and 105, it may be questioned whether, in cases of the altering or rearranging the boundaries of any city, town, or village, notice is required to be given of an intention to apply for the passage of such a law. But the necessities of the present case do not require us to decide this question. The substance of the proposed law in the present case is the altering or rearranging of the boundaries of the city. This was contained in the published notice of the intention to apply'for the passage of the act, and, conceding that it was necessary to give the notice as required in section 106 of the Constitution, this would have been sufficient, without giving in minute detail and particularly the course and bearings of the boundary line. What was said, and the principle there stated, in Law v. State, 142 Ala. 62, 38 South. 798, finds ready application here. There can be no distinction in principle in the two cases on the question under consideration. See, also, Ex parte Black, 144 Ala. 1, 40 South. 133. The published notice having given the substance of the proposed law — the altering or rearranging of the boundaries of the city of Ensley — the fact that’notice was also given of the proposed territorial lines, which were not followed, but were changed in the act as passed, does not invalidate the act or affect the principle above stated, since the fact remains that the notice given contained the substance of the law as enacted. The foregoing views are not in conflict with the decision in the case of Brame v. State, (Ala.) 38 South. 1031. The facts in that case .readily differentiate it from the case before us.

The bill as passed did not include'in the city limits the railroad mentioned in the advertised notice. The proviso at the conclusion of section 1 of the act, in reference to the taxation of the railroads mentioned therein, is without any field of operation, since in the act as passed these railroads are not within the city limtis, and may, therefore, be stricken out without affecting the main purposes of the act or its integrity. The rule is well settled that whenever a part of an act, objectionable on constitutional grounds, can be eliminated without affecting the purpose of the act or its integrity as a whole, this will be done, and the valid and unobjectionable part be permitted to stand. Such is the case here. The provision in the act .in reference to the'railroads can be eliminated and the balance permitted to stand without in the slightest affecting the integrity of the act as a whole.

The city of Ensley was incorporated by special act of the Legislature, and not under the general statute relating to the incorporation of towns, etc.; and hence the general statute has no application in this case.

The foregoing vieAvs bring us to the conclusion that the act of February 28, 1903, is free from constitutional objections, and,'therefore, a valid law; and, under the agreed statement of facts, this conclusion renders it unnecessary to the determination of this case to consider the constitutionality of the act of September 30, 1903. It follows that the judgment must be reversed, and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Anderson and McClellan, JJ., concur.