Henry v. State , 218 Ala. 71 ( 1928 )

In Brandon, Auditor, v. Askew, Sol., 172 Ala. 167,54 So. 608, it was observed that:

"Section 96 of the Constitution provides that 'the Legislature shall not enact any law not applicable to all the counties in the state, regulating costs and charges of courts, fees, commissions or allowances of public officers.' Subdivision 24 of section 104 provides that no special, private, or local law shall be passed 'creating, increasing or decreasing fees, percentages or allowances of public officers.' An invariable rule of statutory construction requires that every reasonable intendment must be indulged in favor of the act. This rule cannot be set aside upon any considerations of mere policy supposed to be observable in the general current of legislation, unless that policy is also found clearly expressed in the letter of the Constitution. In view of the use of the word 'salary' at other places in the Constitution, its omission from the two sections just quoted is significant. In section 281 the language is as follows: 'The salary, fees or compensation of any officer holding any civil office of profit under this state, or any county or municipality thereof, shall not be increased or diminished during the term for which he shall have been elected or appointed.' And in section 167, which provides that there shall be a solicitor for each judicial circuit, the language is that 'he shall receive no other compensation than a salary, to be prescribed by law.' A salary is a fixed compensation 'decreed by authority, and for permanence,' is paid at stated intervals, and depends upon the time, and not the amount of services rendered. Dane v. Smith,54 Ala. 47; Benedict v. United States, 176 U.S. 357,20 S.Ct. 458, 44 L.Ed. 503. During the last 50 years at least sheriffs have been compensated for services in criminal cases by 'fees and allowances.' In Dane v. Smith, supra, it was said that an allowance per diem for victualing prisoners in jail could in no sense be called 'compensation established by law, to be paid at stated times.' Solicitors are certainly not compensated by fees, costs, commissions, or percentages. Can their salaries be said to be 'allowances,' within the meaning of that term as used in sections 96 and 104? Allowances are of the same nature with fees, costs, commissions, and percentages. They are uncertain and variable in amount. They depend upon the rendition of services, which may or may not be required or performed, and sometimes upon the discretion of the court ordering their payment. We have no difficulty in reaching the conclusion that solicitors are not compensated by allowances, but by salaries only, and that the constitutional provisions here relied upon by the appellee have no bearing upon his case."

These utterances were cited with approval in Vaughn, Probate Judge, etc., v. State ex rel. Barker, 212 Ala. 461, 103 So. 38. And in Birmingham Electric Co. v. Harry, 215 Ala. 459,111 So. 42, it is said:

"If the opinion heretofore written may be understood in the sense in which it was intended, there need be no apprehension about the constitutional validity of certain acts of the Legislature at the session of 1919 affecting the salaries of public officers in Montgomery county. Obviously a majority of these acts are wholly untouched by section 96 of the Constitution. In two of them, viz. the act fixing the salary of the tax assessor (Acts 1919, p. 108), and the act fixing the salary of the tax collector (Acts 1919, p. 263), it was provided that the officers in question should receive 'allowances' for clerical help; but the provision in both is that the clerical help shall be regularly employed and shall be paid in monthly installments. It is entirely clear that these so-called allowances do not go to the officers named, and that the compensation of clerical help is not an allowance to public officers, but the 'allowances' for clerical help in the cases mentioned, under the decisions of this court, are, notwithstanding the language employed, not allowances even to the clerical help employed, but salaries, with which section 96 of the Constitution has no sort of concern. Dane v. Smith,54 Ala. 47; Brandon v. Askew, 172 Ala. 168, 54 So. 605."

It is only necessary to apply these pronouncements to demonstrate that section 96 of the Constitution is without influence in this case, and in fact to show that the special constitutional amendment applying to the counties of Montgomery and Jefferson was wholly unnecessary to authorize the Legislature to put the county officers of those counties on a salary.

Section 96 of the Constitution out of the way, uniformity of application is not required, and the constitutional integrity of the act is not destroyed by the fact that it only has immediate effect in one county, and its application to the other counties of the state is postponed until by further growth they come within its influence. State ex rel. Collman v. Pitts, Probate Judge, 160 Ala. 133, 49 So. 441, 686, 135 Am. St. Rep. 79; State ex rel. Woodward v. Skeggs, 154 Ala. 249,46 So. 268; State ex rel. Brown v. Porter, 145 Ala. 541,40 So. 144; State ex rel. Covington v. Thompson, 142 Ala. 98,38 So. 679; Smith v. Stiles, Probate Judge, 195 Ala. 107, 70 So. 905; State ex rel. Brooks v. Gullatt, 210 Ala. 542, 98 So. 373.

The special amendment to the Constitution as to Jefferson county removes the influence of section 281 of the Constitution, so as to allow the act to apply to the incumbent in office at the time of its enactment.

For these reasons, I am of opinion that the act in question must be classed as a general law within the meaning of section 110 of the Constitution, and hold that section 106 was not violated in its enactment.

SOMERVILLE, J., concurs in the opinion of Justice BROWN.

ANDERSON, C. J., dissents, as hereinafter indicated, and SAYRE, J., concurs in that dissent. It is as follows: