Dane v. McArthur

STONE, J. In the act “to provide for the adoption, printing and distribution of the Revised Code of Alabama,” .approved February 19, 1867 — Pamph. Acts, 718 — it is enacted : § 1. “ That the Code of Laws, revised and prepared by A. J. Walker, commissioner, pursuant to the act approved February 21, I860, and reported to the present General Assembly, be, ^nd the same is hereby received and adopted, as provided herein, and by said Code, as the Revised Code of Alabama, and the office of said commissioner is hereby continued for the purpose of making a full and complete index thereto; of incorporating therein all laws passed by the present General Assembly, of a public and general nature.” § 9. “ That all the provisions of the Revised Code, except such as are expressly declared by law to become of force at a different period, are of force after the term of sixty days • from the date of the Governor’s proclamation that the said Revised Code was printed and bound in conformity with the .provisions of said act.” On the 19th day of December, 1867, the Governor, pursuant to the act of February 19, 1867, issued his proclamation, and under it the Revised Code went into operation February 17, 1868. In the Pamphlet Acts 1867-8,' p. 609, is printed what purports to be an act “to declare judgments.liens upon the property of defendants,” the substance of which, less the proviso, is published in the Revised Code as section 2877. This act appears to have been approved February 19, 1867, the very day on which the act adopting the Revised Code was approved, from which we have copied above. It is •thus shown that this act was not embodied in the Revised Code at the time the latter was adopted, February 19, 1867. Under the clause, however, continuing the commission for The purpose of incorporating in the Code “all laws passed [454] by the [then] General Assembly of a public and general nature,” Judge WALKER., the commissioner, embodied in the Revised Code, as it was published, the substance of said act,, as follows: § 2877. “Judgments of courts of recoz’d existing-at the passage of this law, on the 19th of February, 1867, and those rendered after that time, are liens on all the property of the defendants therein, which is subject to levy and sale.” In the case of Jones v. Hutchinson, 43 Ala. 721, the question came before this court, whether the act “ to declare judgments liens zzpon the property of defendants,” had been enacted according to the requirements of the Constitution; and it was decided that it had not. We approve that - decision. It results from this, that section 2877 of the-Revised Code did not become the law of this State, by the-act adopting the Revised Code, approved February 19,1867,.. by its incorporation and publication in the Code, nor by the-proclamation of the Governor. In the act “ to continue in force certain laws,” approved July 29, 1868 — Pamph. Acts, p. 7 — it is declared “ that all laws and parts of laws of the Revised Code of Alabama, except such as conflict with the Constitution and laws of the-United States, or the Constitution of this State, be, and the-same are hereby declared to be in full force and effect until repealed by this or some succeeding legislature.” It will be observed that the caption and body of this-statute alike speak of laws; of nothing less. All “ laws and parts of laws,” is the language of the statute. Neither the caption nor the body of the statute can have the effect of making that law, which had not been previously enacted with the powers of law. Section 2877 of the Revised Code— act “to declare judgments liens upon the property of defendants,” approved February 19, 1867 — was not so enacted, as was well declared by this court in Jones v. Hutchinson, 43 Ala. 721; and we hold that section 2877 of Revised Code did not become law by force of the act of July 29, 1868. The kziown history of the times aids us much in determining - the real purpose and policy of that statute. Under the proclamations of President Johnson, and of Governor Parsons, the State of Alabama, after the close of the war, had adopted a constitution, known as the Constitution of 1865,, and, under it, had resumed all the functions of civil administration. Between that time and the time when what is-known as the Constitution of 1868, attempted to be adopted under the reconstruction measures, was put upon us by act. [455] of Congress of June 25, 1868, many statutes were enacted, and the Bevised Code of Alabama was adopted.. The act was passed by the reconstructed legislature, and it was claimed by some of the supporters of, and officers under the reconstruction measures, that the acts during the war, and the acts of the Johnson — Parsons government, as. it was called, were, at least, irregular. The statute in question was to heal that imputed irregularity. It is contended that the act “ for the protection of bonafide purchasers for a valuable consideration,” approved October 10, 1868 — Pamph. Acts, 266 — by reciting section 2877 of the Bevised Code as an existing law, thereby makes it such; that this is an enactment of it, if it was not a law before. If this be so, then by the same argument it is shown that all the numerous statutes therein recited, including the several acts approved February 8th, 1861, February 9,1861, ■December 9, 1861, December 10, 1861, December 8, 1863, February 20, 1866, and February 19, 1867, are equally thereby made valid laws. This will include and make binding several acts which have been declared inoperative, and, notably the proviso to the act of February 19, 1867, which was declared never to have been enacted, in Jones v. Hutchinson, supra. The argument defeats itself, by proving too much. But there is another answer, which is fatal to the argument. The Constitution of 1868, article 4, section 2, declares thatu each law shall contain but one subject, which shall be clearly expressed in the title.” Neither the caption nor the body of the act we are considering express any purpose to constitute judgments liens. On the contrary, the caption was, “ for the protection of bona-fide purchasers for a valuable consideration; ” and the body of the statute sought to limit, and in certain cases take away the lien of judgments, then supposed to exist. No one, in reading the act, could have the slightest conception that it conferred a lien. On the contrary, he would be convinced that it sought to take away, and did take away a lien, at least, supposed to exist. We can not give the effect to the statute which the argument invokes, without disregarding the provision of the Constitution above copied. In what we have said we have ignored the act “ to declare void certain judgments,” &c., approved December 17, 1868, Pamph. Acts, 415. The seventh section of that act repeals section 2877 of the Bevised Code. This act was declared unconstitutional in Weaver v. Lapsley, 43 Ala. 224. We do [456] not wish to disturb that decision. Neither have we commented on several decisions of this court, which sustain many of the views stated above.—See Nicholson v. Mobile and Montgomery Railroad Co. 49 Ala. 205; Ex parte Amos, 51 Ala. 57; Martin v. Hewitt, 44 Ala. 418 ; Reynolds v. Taylor, 43. Ala. 420, 433. In the case last cited, this court said: “ The laws embraced in the Revised Code consist of laws that were in the old Code, laws passed during the rebellion, and laws passed since the rebellion, and before the said Code was finally completed and adopted,” &c. Section 2877 of the Code does not fall within either of the classes; and hence we hold it never became a law. We do not, by the citations above, intend, at this time, to express our approbation of all that is therein expressed. The present motion was not made against a sheriff, who was then an officer of the court, under section 3027 of the Revised Code. The motion was against Dane as “late sheriff.” This required personal service on all. Judgment could only be rendered against the principal and such of his sureties as were served — Rev. Code, § 3026; or, against such as appeared and pleaded. The record fails to show that any of the sureties were served, or pleaded. Dane alone appeared and pleaded. Hence, there could be no judgment against the sureties. The judgment entry adjudges that “ said John McArthur have judgment in this behalf against the said Rufus Dane and the sureties on his official bond;” stating the amount. The ease was tried by the court without a jury, and the record fails to show that proof was made as to who were the sureties on Dane’s official bond. The names of the sureties are stated in the margin of the judgment entry; no where else. This did not justify a judgment against any but the sheriff.—Le Vert v. P. & M. Bank, 8 Por. 104; Zurcher v. Magee, 2 Ala. 253. If what appears as the judgment entry, in this record, can be regarded as a judgment against any person except Dane, the appellant, it is a mere clerical error, amenable in the court below, and will be amended here at the costs of the appellant.—Savage v. Walshe, 26 Ala. 619; Kennedy v. Young, 25 Ala. 563; English v. Brown, 9 Ala. 99; 1 Brick. Dig. 82, §§ 180, 184, 189. The demurrer to the motion was rightly overruled. There are conditions in which a sheriff is authorized to sell property attached, without obtaining any order therefor. — See Revised Code, § 2957. We will, if necessary, presume the sheriff did his duty, and rightfully sold. It does not lie in [457] his mouth to say he sold improperly, and therefore is not liable to account for the money. Judgment of the Circuit Court against Rufus Dane affirmed, but without damages adjudged on affirmance in this court; but this does not vary the judgment below, save to discharge the sureties on the sheriff’s bond.