Ex Parte Central of Georgia Ry. Co. , 243 Ala. 508 ( 1942 )

The question of the interpretation of section 2 of the Bessemer Court Act of 1919 (Local Acts 1919, page 62) should not now be approached as a new one in respect to the venue of causes of action which may arise in the Bessemer Division. I think as an original proposition, the Act could very well be construed on either of two theories. One that the venue statute should apply as though it created a separate county; and, another, that it was intended to confine them to that court and eliminate the Birmingham court from considering causes which arose in the Bessemer Division, though the parties may all reside in Birmingham, and though if they resided in another county, it would not exclude that county as being the proper venue.

That being the situation, this Court deliberately accepted the former theory in Ex parte Fairfield-American Nat. Bank,223 Ala. 252, 135 So. 447, decided in 1931.

But it is said that we should not treat that case as authoritative because it was controlled by section 9 1/2 of the Act, being one in equity, and because it was contrary to the case of Triest Co. v. Enslen, 106 Ala. 180, 17 So. 356.

The contention concedes that the legislature by the Act of September 9, 1927 (page 711) undertook to repeal section 9 1/2. But the argument is that the repealing act was general, when it should have been passed after publication as a local act, and that therefore it was unconstitutional and should have been ignored by the Court in the Fairfield case, supra, and that no reference was made to it in that case, but it was planted on the venue statute, it is not an authority that the venue statute should be controlling. But this argument cannot stand. This Court never disregards an act as unconstitutional unless the contention is made, and it is necessary to a decision of the case. The report of the case gives no indication of such contention. The briefs are not so based. Nothing in the opinion gives the slightest indication of such contention. And the argument and reasoning in the case show that it was not necessary to declare it unconstitutional, since the same result was held to follow under the venue statute.

Moreover, it is farfetched to say that though it was planted on the venue statute, it should not have been, and, therefore, it is not an authority for that statute. That reasoning is not sound. For it stands flatly on the venue statute without any doubt or uncertainty. It was as clear as language could express the thought, and stood four years in bold relief. Then the legislature by the local act of September 7, 1935 (page 216) reenacted section 2 of the Act in the same language except as to the boundaries of the Bessemer Division, also amended sections 5 and 8, and declared that section 9 1/2 be repealed if it had not already been repealed.

So that the attention of the legislature was directed to venue especially, since section 9 1/2 was specifically considered. It was content to confine the repeal to section 9 1/2, leaving venue otherwise unaffected. It was a legislative declaration that the general venue statute had application as had been declared in Ex parte Fairfield-American Nat. Bank, supra.

In the case of Galloway Coal Co. v. Stanford, 215 Ala. 79,109 So. 377, two principles are mentioned, which are well established. One is that under the doctrine of stare decisis, judicial decisions deliberately rendered should not be set aside, unless clearly wrong, or violative of sound principle or social morality. This is said to express the conservation of the law and underlies its entire structure. The other principle is that the legislature adopting a statute (of another state) is presumed to have intended it to have the construction placed upon it at that time and place. And the rule is there also said to be that in the adoption of a code or re-enactment of an act the legislature is presumed to have known the fixed construction which it had received and the substantial re-enactment of such statute is a legislative adoption of that construction. Morrison v. Stevenson, 69 Ala. 448; Wood Dickerson Supply Co. v. Cocciola, 153 Ala. 555, 45 So. 192. Many cases are digested in the Pocket Part of 18 Ala.Dig., Statutes, 225 3/4. They are so numerous I will not undertake to set them out in detail. I do not think any principle is better settled.

So that when this Court in Ex parte Kemp, 232 Ala. 434,168 So. 147, followed Ex parte Fairfield, supra, it but recognized this theory of stare decisis, and neither of those cases should be set aside except by the legislature.

But it is said that the Fairfield case, supra, did not observe that principle for that the same terms as are set forth in section 2 of the Act of 1919, had been construed as now interpreted in an act of 1893, and that therefore the legislature intended to adopt that construction. The case relied on is Triest Co. v. Enslen, supra. That case did not consider venue, and had no such thought insofar as there manifested. It was only considering the constitutionality of the act of 1893. It was only incidentally observed that its essence is to provide for holding circuit court at Bessemer for the trial of causes arising in that part of the county. Such was not the language of that act nor that of 1919.

There was no mention made in either act of causes arising in that part of the county. But they limited the jurisdiction andpowers of the court in the Bessemer Division exclusively to that part of the county. "Jurisdiction connotes the power to decide a case on its merits, while venue connotes locality, the place where the suit shall be heard." 67 Corpus Juris 11. It meant that given the proper venue as being in Bessemer Division, the circuit court of that division shall be exclusive of all other courts in that territory. Such is the plain meaning of section 2. While the broad language of the opinion in Triest Co. v. Enslen, supra, may give a different meaning to it, that contention was not made in the Fairfield case, supra, nor Kemp case, supra. The Fairfield case was certainly the last, and a very clear construction of the Act in a case where its decision was the only question involved at the time the legislature re-enacted it in 1935.

My argument is not now on the proper construction of section 2 of the Act of 1919, as an original proposition, but that its construction in the Fairfield case, supra, was adopted in 1935 by re-enacting it in the same language. The legislature would not have jumped back over the Fairfield case to the case of Triest Co. v. Enslen, supra, without giving some expression to an intention to do so. We are bound to assume that they considered the last authoritative expression of this Court as the one of importance: not adopting one much older, relating to a different act at a time when the Court was not thinking about its construction in respect to venue, and what was said in that connection was not necessary to the decision reached, but was simply incidental.

I am fully persuaded that to overrule or set at naught for any reason now urged either the Fairfield or the Kemp case, supra, would upset settled principles of stare decisis, and I cannot concur in such a result.