Hawkins v. City of Birmingham , 239 Ala. 185 ( 1940 )

A careful consideration of the ingenious argument of counsel for appellant on this application, leads us to the conclusion the original opinion was not sufficiently clear, and has been misunderstood.

Counsel assume that condemnation of the initiative and referendum proceeding in the instant case is rested upon the constitutional prohibition against impairment of contracts. Counsel refer to the principle of law that the police power of the state or municipality cannot be contracted away, citing Hard v. State,228 Ala. 517, 154 So. 77; Stevens v. Thames, 204 Ala. 487,86 So. 77; Shell v. Beeland, 123 Ala. 569, 26 So. 342; Birmingham Mineral R. Co. v. Parsons, 100 Ala. 662, 13 So. 602, 27 L.R.A. 263, 46 Am. St. Rep. 92; 44 Corpus Juris 1268.

But we entered into no discussion of this constitutional question. Had we done so reference would doubtless have been made to 12 Corpus Juris section 636, and authorities cited in the note as to pledged taxes relied upon by creditors as security, including Edwards v. Williamson, 70 Ala. 145. We gave no study to this question as its determination was not considered of controlling importance on the result, for the reason we were dealing only with legislative intent.

In Stevens v. Thames, supra [204 Ala. 487, 86 So. 79], reference was made to the matter of "high moral obligation," and the general rule of law against the impairment of a valid contract by subsequent legislation is recognized as a sound fundamental principle under our form of government.

The original opinion points out that the legislature had in very general language authorized the initiative and referendum as to "any ordinance," but later authorized the borrowing of money by the city and pledging as security therefor the taxes due the city, and to guarantee their continued levy. And the conclusion was that the legislature did not intend to thus authorize the borrowing of money and pledging the taxes as security therefor, and at the same time to authorize a repeal of the taxes thus pledged. Certainly any such legislation would be deceptive to the lender, and entirely out of harmony with any recognition of a "high moral obligation." We simply concluded that this was not the legislative thought, good faith and good intentions being presumed. Such was the effect of our holding originally, though it may be imperfectly stated. Authorities found cited in our original opinion (State v. City of St. Petersburg, 106 Fla. 742, 144 So. 313, 671, 145 So. 175; Denman v. Quin, Tex.Civ.App., 116 S.W.2d 783; Swain v. Fritchman, 21 Idaho 783, 125 P. 319, and State v. Regan,317 Mo. 1216, 298 S.W. 747, 55 A.L.R. 773, cited in note 122 A.L.R. 772, 773) lend support to this conclusion as to the legislative mind upon this question.

The later statute gives the city commission power to pledge the tax and continue it in effect. This continued power is inconsistent with the right of another authority, the electors, by initiative and referendum to repeal the taxes thus pledged. Considering the two wholly inconsistent, and presuming of course good faith, we merely intended to hold that it was the legislative intent, in enacting this later statute, that the pledged taxes should not be subject to repeal by any initiative ordinance, and to that extent the earlier statute had been superseded.

Nor did we intend to say the case rested upon the fact the money was actually borrowed and the taxes pledged. Reference to this fact was by way of illustration. We think, and so hold, that the very existence of the power in the city commission to borrow and pledge the taxes, whether the power be exercised or not, is inconsistent with the power of the voters to repeal, and thereby prevent the continuance of the tax as fixed by the commission.

But appellant strenuously argues this conclusion runs counter to the rule of our decisions that a general law will not repeal by implication a local law, although in form a general law, and passed as such (Davis v. Browder, 231 Ala. 332, 165 So. 89; Board of Revenue v. Johnson, 200 Ala. 533, 76 So. 859; Tucker v. McLendon, 210 Ala. 562, 98 So. 797; Mobile Ohio R. Co. v. State, 29 Ala. 573), and that though the statute providing for the initiative and referendum was general in form (population classification), yet it is local in its application, so to be here considered (Board of Revenue v. Johnson, supra); and, so treated, comes within the above noted rule.

But we think the argument presses the rule too far. We adhere to the general rule as stated in the cited authorities, but we cannot agree it has any controlling influence here. As observed in Tucker v. McLendon, supra [210 Ala. 562, 98 So. 799], "All these rules are merely in aid of the prime aim in all statutory construction — to find the intention of the lawmakers. If such intention is clearly shown by unequivocal language there is no room for construction." In Mobile Ohio R. Co. v. State, supra, it was said: "And the principle above stated [special provisions are not repealed by general provisions] exacts the concession * * * that no general law, subsequently enacted, can be construed to add other conditions to those required by the special law, unless the latter law clearly manifests upon its face an intention to add such new conditions." In Davis v. Browder, supra, the holding was that the general law did so manifest upon its face a legislative intent to repeal the local law there in question.

The underlying reason for the rule that special provisions are not repealed by general provisions, to state it briefly, is discussed in State v. White, 160 Ala. 168, 49 So. 78, 79, where there was sharp division of the Court upon the particular question there considered. One of the reasons for the rule is rested upon the theory that "it is usually presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special act."

Here the law as to the initiative and referendum bore no relation to the later enacted statute for the pledge by municipalities of their taxes to secure loans. Formerly the statute was confined to cities and towns of a designated minimum of population (Section 2011, Code of 1923, General Acts 1927, page 515), but by the amendatory Act of November 2, 1932 (Gen.Acts 1932, Ex.Sess., p. 203), the limitation as to population was omitted; and it is now provided that "any city or town" in this State may borrow the money and make the pledge.

Certainly appellant must concede that Birmingham is within the influence of this Act, and that its contracts for a loan are valid and binding thereunder.

We have concluded that it was the legislative intent there be no interference with this power by a repeal of the tax so pledged. It cannot be said this rule of construction is to hold good elsewhere in the State, but that on account of the initiative and referendum provisions applicable to Birmingham a different rule applies. Of course the same rule must be held applicable to "any city or town," including Birmingham, and the mere fact that Birmingham has provisions for initiative and referendum does not serve to defeat this legislative purpose. There is in fact no repeal of the initiative and referendum provision, but in effect the holding is that as to these taxation matters authorized to be so pledged an exception is made in regard to any initiative or referendum provision looking to their repeal.

Speaking to a somewhat similar situation, the Court in Mobile Ohio R. Co. v. State, supra, observed: "The question here is, not whether the former of the two foregoing acts is repealed by the latter, but whether the latter superadds the conditions mentioned in it to the conditions upon which the renewal of the loan was directed by the former." And the conclusion was the conditions of the later general act were so "superadded".

So here no repeal of the initiative and referendum feature of the former act was affected or intended, but merely that as to the matter of pledged taxes an exception is made thereto.

As these matters were not discussed to any appreciable degree upon the original consideration of the cause, and are now so earnestly pressed upon us, we have considered it proper to respond to the argument of counsel — though perhaps at too great length.

Let the application for rehearing be denied.

Application overruled.

ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.