126 Ala. 600
Supreme Court of Alabama.
STATE EX REL. PORTER
v.
CROOK, JUDGE.
June 27, 1900.
**745 *601 This is an appeal from a final judgment rendered by the circuit court of Calhoun county, Ala., dismissing *602 appellant's petition for a writ of mandamus or other appropriate remedial writ, directed to the appellee as judge of probate of Calhoun county, commanding him to remove the books, papers, and records of his office from Anniston to Jacksonville, and at the latter place keep his office at the court house, and there open for the transaction of business, as prescribed by section 3361, Code 1896. The state of Alabama, on the relation of C. J. Porter, filed a petition in which the petitioner alleged that he owned an unpaid debt secured by mortgage, the record of which in the said probate office, together with the other books, papers, and records thereof, had been by respondent removed to Anniston, and there kept in an office which respondent claimed to be the probate office by reason of an election held under Acts 1898–99, to wit, “An act to provide for the permanent location of the county site of Calhoun county by vote of the qualified electors of said county,” approved November 30, 1898, and an act to amend said act, which said amendatory act was approved February 1, 1899, which said act and amendment thereof are contained in Sess. Acts Ala. 1898–99, from pages 8 to 15, both inclusive, and pages 494 to 499, both inclusive; that said acts were unconstitutional, null, and void; that the court house and county site of said county were still at Jacksonville, and not at Anniston; that all pretended to proceedings under said Acts 1898–99 were null and void, by reason of the unconstitutionality and the invalidity thereof; that any pretended exercise of authority by said judge of probate in removing his office to the city of Anniston, and his failure and refusal to hold and keep open the same, and the books, papers, and records thereof, in the court house, in said town of Jacksonville, are contrary to law, and a failure in the performance of respondent's duty as such judge of probate; that petitioner is a resident citizen of Calhoun county, and has resided there more than five years; that he made a demand upon said respondent, as such judge of probate, after such removal to Anniston, that he keep his office, as such judge of probate, at the court *603 house, in the town of Jacksonville, and open there for the transaction of business as required by law, which demand was peremptorily refused, on the ground and for the reason claimed by respondent that, by virtue of said Acts 1898–99 of the general assembly of Alabama, and proceedings thereunder, the county site of said county had been removed from Jacksonville to Anniston, where he had opened up the probate office of said county for the transaction **746 of all the business of the office, and that he would continue henceforth to hold the said office in Anniston. The petition is full and formal in its allegations, and properly verified by affidavit of the petitioner. Upon filing and inspection of the petition, Hon. John Pelham, as judge of the Seventh judicial circuit of the state of Alabama, ordered that it be entertained by the circuit court of Calhoun county, and issued an alternative writ, returnable into the said court. Respondent accepted service of the original petition and alternative writ, and entered an appearance in the said circuit court in said cause, and when court met appeared in the court, and filed a demurrer to the petition, the grounds of which were as follows: “(1) For that said petitioner fails to show a sufficient interest to authorize the granting of the relief prayed for in said petition; (2) for that no sufficient ground is stated in said petition why an order should be issued requiring said defendant to remove all the books, records, and papers thereof from Anniston to Jacksonville; (3) for that it appears upon the face of the petition that the probate judge refused to return the records from Anniston to Jacksonville upon the ground that the county site of said county of Calhoun had been by law removed from said town of Jacksonville to the city of Anniston, and said petition fails to show, by any sufficient averment, that the county site of said county has not been so by law removed; (4) for that it is alleged as a conclusion in said petition that the act or acts under and in pursuance of which the county site of Calhoun county was removed from the town of Jacksonville to the city of Anniston are unconstitutional and void, but fails to show wherein or in what respect the said act or acts of the legislature are *604 invalid or unconstitutional; (5) for that said petition fails to set forth the provisions of the act or acts of the legislature which are alleged to be unconstitutional and void, and fails to set forth the proceeding or proceedings under said act or acts of the legislature which are alleged to be unconstitutional and void; (6) for that it does not appear that the said act or acts of the legislature referred to in the petition are unconstitutional or void, or are in any respect invalid or inoperative; (7) for that the court will judicially know that the county site of Calhoun county has been removed by law from Jacksonville to Anniston.” The court sustained the demurrers, against petitioner's objection and exception, and, petitioner declining to amend, the court rendered final judgment dismissing the petition out of court, to which petitioner objected and excepted. Appellant's assignments of error on this appeal raise the question of the correctness of the judgment of the lower court in sustaining respondent's demurrer and dismissing the petition.
McClellan, C. J., and Haralson, J., dissenting.
Attorneys and Law Firms
Browne & Dryer, for appellant.
*607 Thos. W. Coleman, Jr., and Knox & Bowie, for appellee.
Opinion
*608 TYSON, J.
The two acts passed by the general assembly during its sessions 1898–99, one approved November 30, 1898 (Acts 1898–99, p. 8), entitled “An act to provide for the permanent location of the county site of Calhoun county by a vote of the qualified electors of said county,” and the other approved February 1, 1899 (Acts 1898–99 p. 494), entitled “An act to amend an act entitled ‘An act to provide for the permanent location of the county site of Calhoun county, by a vote of the qualified electors of said county,’ approved November 30, 1898,” embody all the provisions necessary for the making of a choice between the two places named in the acts, to wit, Anniston and Jacksonville, as the site for the county court house of Calhoun county, by an election to be held thereunder. To particularize, they provide for the ordering of the election by a board of commissioners named, at which persons are to be allowed to vote possessing certain qualifications therein *609 specified; notice of the time and the purpose for which the election is to be held to be given by this board of commissioners; the appointment by the board of registrars, inspectors, clerks, and returning officers; the registration of voters; the opening and closing of the polls; the places where the election is to be held; the canvass by the board at the court house in Jacksonville, on a designated day, of the vote cast; and a certificate by the commissioners who compose the board, in writing, of the result of the election, to be filed and recorded in the office of the judge of probate. They also prescribe the duties of the registrars, inspectors, clerks, and returning officers; the oaths to be administered to each of these officers; and, as we have said, the qualifications of the electors, which are expressed in an oath to be administered by the registrar to each elector, to be subscribed by such elector, before registering. In short, the entire machinery for the holding of the election is expressly provided in detail in these acts themselves, without resort having to be had to any other law in force regulating elections. Indeed, all legislative intention that general laws regulate elections to be held in the state is conclusively excluded by the fact that the whole conduct and management of the election and the ascertainment of the result is intrusted to the board of commissioners, who are in no way connected with the conduct and management of elections under the general laws. Not a member of this board is an officer of the state or of the county of Calhoun upon whom is devolved the duty of an election officer under the general statutes.
Objections are taken to these acts upon grounds involving their constitutionality, and, really, these objections constitute and present the only questions for consideration. Instead of garnering them out of the allegations of the petition for ourselves, we will state them, **747 substantially, as they are set out in appellant's counsel's argument: (1) The provision of the acts requiring inspectors to number each ballot with the number to corespond with the number opposite the elector's name on the poll list violates section 2 of article 8 of the constitution, which ordains that “all elections by the people shall be by *610 ballot, and all elections by persons in a representative capacity shall be viva voce.” (2) The provisions of the act in reference to registration, by express and penal terms, exclude certain classes of qualified electors, in violation of section 1 of article 8 of the constitution. (3) The act being entirely at variance with the existing election laws of the state, and being confined in its operation to one county, contravenes section 5 of article 8 of the constitution, which provides: “The general assembly shall pass laws, not inconsistent with this constitution, to regulate and govern elections in this state, and all such laws shall be uniform throughout the state.” (4) The body of the act varies from the caption, in that it excludes certain classes and descriptions of qualified electors, by express and penal provisions, and thus violates section 2 of article 4 of the constitution, providing that “each law shall contain but one subject, which shall be clearly expressed in its title.”
It is urged in support of the first three objections that the act requires the numbering of the ballot, thereby destroying its secrecy; that the system of registration provided by it disfranchises some persons who are otherwise entitled to exercise the privilege of the electoral franchise conferred by article 8 of the constitution; and the method of voting, and the scheme of the conduct and certification thereof, are entirely variant from the existing election laws of the state. All this may be conceded for the purposes of this case, and yet it does not follow that the act is subject to the objections. It might well be doubted whether the provisions of article 8 of the constitution, which relate exclusively to suffrage and elections have reference to any election by the people other than those held to elect public officers. Hanna v. Young (Md.) 35 Atl. 674, 34 L. R. A. 55, and authorities cited. It is unnecessary, however, to decide this question. The subject–matter of the act under consideration was clearly one within the power of the legislature, without limitations or restraint to deal with. 7 Am. & Eng. Enc. Law (2d Ed.) pp. 1019, 1020, notes. It could have directed the court house to be removed *611 from Jacksonville to Anniston by simply ordering it to be done. Or it could have directed the commissioners named in the act to ascertain the wishes of or choice of the inhabitants of the two towns, including the women and children, or of the inhabitants of the entire county, by petition, by personal interviews, by ballot, or otherwise, and, upon certification of their findings of the result, the site should be the one so ascertained by them to be the selection of a majority of those inhabitants who expressed their choice. In other words, the legislature had the right to adopt any method it chose to ascertain the wishes of those with whom it desired to consult in the locating of the court house at the one or the other of the two places. It was under no obligation to consult any one, or to confer with any one; but there is no obstacle to its doing so, if it desired, and, as to those whose opinions it wished to have expressed upon the subject of which of the two places should be the county site, it clearly had the right to designate them, without reference to whether they were qualified electors under the constitution or electors at all. In the language of Chief Justice Walker in Ex parte Hill, 40 Ala. 121: “The validity of a statute can never depend upon the antecedent consultation of the people by the legislature, nor upon the affording to them an opportunity to express their sentiments through petitions. The removal of the court house of a county, and its permanent location, is indisputably a permissible exercise of legislative authority. This authority it may exercise without consulting the people of the county, through the ballot or otherwise; and if it chooses to select two places, and leave the choice between them to popular vote, it is the manifestation of a deference to public opinion which is not demanded by the constitution.” If it is not demanded by the constitution, then no elector who derives his right of franchise from the provisions of the constitution can complain that his right of suffrage is abridged or otherwise impaired by the act which does not afford him the opportunity to express his choice. He was not invited by the legislature to consult with it, and he cannot force his advice or opinion upon it without its consent. It is a matter which concerns only those whom the legislature *612 voluntarily invited to assist it in making the choice. The legislature, by adopting the method of ascertaining the choice by ballot of those whom it desired to consult, cannot be held to be bound to include every person who may be entitled to vote at a popular election under the constitution, or to exclude those whose advice it sought, from expressing their choice, because excluded by the constitution from the exercise of the electoral franchise at a popular election. To hold otherwise would be to destroy the plenary, and otherwise unlimited and unrestricted, authority of the legislature; to fetter and handicap it in dealing with a matter, forsooth, because it required the choice by ballot, when it was not required to consult any one, and when it was clearly within its competency to provide any method it sees proper to adopt for a manifestation of the sentiment of those persons it desires to consult. The contention of appellant would destroy the right of the general assembly to submit any matter to the choice of the people by **748 ballot, except to those persons who are qualified electors under the constitution, and even to a portion who do not constitute the entire voting population of a county. In other words, the electors of a beat or a number of beats could not be consulted by ballot. Under this rule, all laws providing for local option, stock districts, etc., depending upon a vote of a majority of the electors of the district, would be invalid, notwithstanding there is no constitutional limitation upon the right of the legislature to submit these matters to the freeholders or any other persons residing in the district to be affected by the law,–a right which has often been exercised and recognized as legitimate enactments.
Under the constitution of 1819, which was in force until the adoption of the constitution of 1865, every white male person, of the age of 21 years or upwards, who was a citizen of the United States, and shall have resided in this state one year next preceding an election, and the last three months within the county, city, or town in which he offered to vote, was a qualified elector, etc. While this constitutional provision was in force, the act of the legislature, which by its several sections provided that, before the corporation of *613 the city of Mobile should be entitled to levy the special tax provided in the act, an election should be held in said city, at which none should be allowed to vote except the owners of freehold estates in said city, or tenants under lease for a term of five years and upwards, and guardians who represented estates of wards, and required the concurrence of three–fifths of the votes polled in favor of the tax, was passed, and its constitutionality assailed and upheld in the case of Stein v. Mayor, etc., 24 Ala. 591, 612, 613. See, also, Gibbons v. Railroad Co., 36 Ala. 410. It is clear to our minds that these objections are not well founded. Ex parte Hill, 40 Ala. 121; Clarke v. Jack, 60 Ala. 271; Leigh v. State, 69 Ala. 261; Moulton v. Reid, 54 Ala. 320; McGraw v. Commissioners, 89 Ala. 407, 8 South. 852; Stanfill v. Court of Revenue, 80 Ala. 287; 6 Am. & Eng. Enc. Law (2d Ed.) pp. 1024, 1025, notes; Mobley v. Police Jury, 41 La. Ann. 821, 6 South. 779; Bew v. State, 71 Miss. 1, 13 South. 868; Plummer v. Yost, 144 Ill. 68, 33 N. E. 191, 19 L. R. A. 110.
The numerous cases cited in appellant's brief to sustain his contention, in seeming conflict with the views we here express, are based upon constitutional limitations of the authority of the legislature of those states to order a removal of or a selection of a county site without first submitting the question of removal or selection to the electors of the county. The case of Gandy v. State, 82 Ala. 61, 2 South. 465, is not in conflict with what we have said. All that was held in that case upon the point under consideration was that the general penal statute was broad enough in its language to embrace any election held in this state, whether under the general or a special law. The election may be a legal one, under a special law authorizing it, there being no constitutional inhibition against the passage of such a law, although it is not such an election as is contemplated by article 8 of the constitution.
The remaining question is the one raised by the objection to the title of the act. It will be well to observe, before entering upon a consideration of this question, that the general statutes providing for and regulating elections apply only to elections of public officers, and not to elections to be held of the character of *614 the one provided by the act under consideration (sections 1556–1703, Code; Clarke v. Jack, supra; Leigh v. State, supra); also to note that the electors qualified by the act to vote in the election to be held under it are also qualified electors, under the constitution and general laws. The point taken is that the act excludes certain persons qualified, under the constitution and general statutes, to vote in popular elections. We have not, then, the case where the effect of the act is broader than its title, but, according to appellant's contention, a case where the provisions of the act are narrower than the ordinarily accepted meaning of some of the words in the title.
It cannot be said that the title contains more than one subject; for it needs no argument to show that the words, “of the qualified electors of said county,” when read in connection with the words which precede them, “to provide for the permanent location of the county site of Calhoun county by a vote,” are germane to the subject expressed, and are expressive of a part of the means to be employed to a full accomplishment of the purposes sought, to wit, “to provide for the permanent location of the county site of Calhoun county.” As said in State v. Street, 117 Ala. 208, 23 South. 807, and quoted approvingly in Railroad Co. v. Reed (Ala.) 27 South. 19: “When the title of an act expresses but one general subject, and all its provisions are allied to the subject expressed, or, as is usually said, germane or cognate to it, all the purposes of the limitation are satisfied. This is the real test in each particular case: When the title expresses one general subject, however broad and comprehensive the subject may be, whether the act includes provisions which by no fair intendment can be considered as having connection or relation to the subject expressed.” Or, as said in Ex parte Pollard, 40 Ala. 99: “The question must always be whether, taking from the title the subject, we can find anything in the bill which cannot be referred to that subject. If we do, the law embraces a subject not described in the title. But this conclusion should never be attained, except by argument characterized by liberality of construction and freedom from all nice verbal criticism.”
*615 But it is said that we cannot look to the language employed in the body of the act to ascertain the meaning of the words employed in the title. The contention suggests these **749 questions: How, in any case, could the court ever determine that the act contains more than one subject, where only one is expressed in the title? How would the court ever determine that any foreign matter had been injected into the body of the act, incongruous to the subject expressed in the title? What process or means is to be resorted to in determining whether a matter in an act is germane to the general subject expressed in its title? In truth, a comparison of the provisions of the act and the title is the only way by which these questions can be solved. Indeed, should the title contain two subjects, and the body of the act only one, that which is expressed in the title, but not contained in the law, may be rejected as surplusage. Judson v. City of Bessemer, 87 Ala. 242, 6 South. 267, 4 L. R. A. 742; Gandy v. State, 86 Ala. 20, 5 South. 420; Thomas v. State (Ala.) 27 South. 315. An examination of the body of the act and the title must be made together, the one with reference to the other, for the purpose of determining the variance between them, in order to be apprised as to whether the title is deceptive. Non constat, the provisions of the act may follow to the letter all inferences to be deduced from the language of the title in the minutest detail.
But, to go back to the position contended for in this case, which, in its last analysis, is that the words “qualified electors” as used in the title must be held to be referable to those persons who are electors under the constitution and statutes of the state, and that this is the sense in which they would be understood to be used by the members of the general assembly when the title to the act is read, and therefore the general assembly and the public were misled by those words into the belief that the bill or act provided that all persons residing in Calhoun county, entitled under the constitution and general laws to vote, would be permitted to do so, whereas it excluded a certain class of them by the system of registration, etc., provided for in the act. If they stood alone, they would mean, “persons who are legally qualified to vote.” Bouv. Law Dict. 800. And *616 doubtless, if they were used in connection with a subject–matter to which the constitution and the statutes at large regulating the right of suffrage are applicable, the contention would be sound. But they are not used in connection with a subject–matter, as we have shown, with which article 8 of the constitution has anything to do. They are distinctly, unqualifiedly, and inseparably associated with the subject of the location of a county site for Calhoun county, the subject–matter of the enactment over which the general assembly, as we have shown, had the right to deal without restriction or limitation, and the unqualified right to provide the qualifications of all persons who should by the act be permitted to vote at the election to be held under it. They must be construed in connection with the language with which they are associated. The entire language of the title of the act must be considered and taken into consideration when we undertake the interpretation of these words. When construed in connection with the subject with which they are associated and the unlimited authority of the general assembly over that subject, and bearing in mind that the constitution and the statutes conferring and regulating the electoral franchise in popular elections have no application to an election to be held for the location of a county site, the words “qualified electors” in the title must be referable only to those who are qualified by the provisions of the act. Affirmed.
McCLELLAN, C. J., and HARALSON, J., dissenting on the last point.
All Citations
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