City Bank & Trust Co. v. State ex rel. Langan

McCLELLAN, J. In application of a pertinent phase of section 105 of the Constitution of 1901 it has been accepted here that a test of the exemption of a local, private, or special law from the condemnation of the section, because provision has already been made therefor by a general lane, is whether the proceeding or action contemplated by the local, private, or special law might have been, in substance and not in respect of detail merely, taken or had under the general law. If so, the local, private, or special act violates the section (105) and is void. — Brandon v. Askew, infra, 54 South. 605; City of Montgomery v. Reese, 149 Ala. 188, [202] 43 South. 116; Forman v. Hair, 150 Ala. 589, 43 South. 827; City of Ensley v. Simpson, 166 Ala. 366, 52 South. 61; Norwood v. Goldsmith, 168 Ala. 224, 53 South. 84. In City of Montgomery v. Reese, supra,, touching this section,, it is said: “It is of no consequence that the special or local act contains matter germane to the subject expressed in its title, “to authorize the city council of Montgomery to refund the bonded indebtedness of said city,” etc., which are not in the general law; for, obviously, if the insertion of such matters in a special, local, or private law would obviate the constitutional prohibition, then the prohibition could be easily circumvented and practically rendered nugatory. It is not perceivable that the framers of the Constitution intended the prohibition to operate only against special, local, or private laws which are in ipsis verbis of the general law.” In Forman v. Hair, supra, it is said: “Section 105 of the Constitution is very broad and sweeping in its terms. Its purpose is manifest, and the Legislature is positively forbidden and prohibited from enacting any special, private, or local law, except a law fixing the time of holding courts, and regulating or prohibiting the liquor traffic, in any case which is provided for by a general law, or when the relief sought could be given by any court of this state.” It was also noted, in that case, that by express provision of section 105 the determination of inquiries whether the matter of the local, private, or special law was “provided for by a general law,” and whether the relief sought could be “given by any court,” was committed to the courts, and not left with the Legislature. The soundness of the doctrine of City of Montgomery v. Reese has not been questioned or departed from. It is obvious, from the unequivocal terms of section 105, that the enactment of local,-private, and special laws is [203] prohibited in all cases not expressly excepted in that section (105) where the matter is provided for by general law, or where any court can give the relief the local, private, or special law would afford. In concrete cases the inquiry open must be, not what the section (105) prohibits, but whether the enactment assailed falls within either of the categories created by the section. As appears from the quotation from the Reese Case, supra, the application of the section is not to be determined by the fact that the enactment assailed is not ipsis verbis of the general law, nor by the fact that matter germane to the general law is contained in the enactment assailed. In short, the test is, as before stated, whether the subject-matter of the general law and of the local, private, or special law is the same.— Authorities, supra. In Mobile v. Watson, 116 U. S. 289, 6 Sup. Ct, 398, 29 L. El. 620, it was established that the abolition of the municipality under the corporate name of “the Mayor, Aldermen, anl Common Council of the City of Mobile,” anl the creation of the municipality under the corporate name of the “Port of Mobile,” in the same, in part, territory theretofore comprising the elder municipality, the junior corporate entity was the" successor in law of the elder and was liable for its debts. The like ruling was previously made in Amy v. Selma, 77 Ala. 103. Accordingly, the present corporate entity, called the “City of Mobile,” was and is, in law, the debtor by succession to the “Port of Mobile.” Such was the view taken in Ex parte City of Mobile, 155 Ala. 226, 46 South. 766. The act approved February 26, 1903 (General Acts 1903, pp. 71, 72), a general law, was well foreshadowed in its ample title, viz., “An act to provide for the settlement, adjustment and refunding of the bonded indebtedness of municipal corporations.” In section 2 of the [204] act provision was made for the renewal, in the operation, of a lien, mortgage, or deed of trust on property to secure the payment of refunding bonds. (This act was amended by the act approved August 6, 1907 [General Acts 1907, pp. 532-584].) The provisions in the body of the local act, applicable to the city of Mobile alone, approved March 4, 1907 (Local Acts 1907, pp. 309-318), were prophesied generally, in the title thereto, as follows: “An act to provide for the payment of the outstanding indebtedness of the late municipal corporation known as the Mayor, Aldermen and Common Council of the City of Mobile, evidenced by bonds of said corporation, bearing date January 1, 188Í, to authorize the city of Mobile to issue bonds for that purpose, to create a lien upn the wharf property and water front rights and privileges of the city of Mobile, to secure the payment of said bonds at maturity, and to regulate the application of the net revenues derived therefrom to aid the payment of interest on bonds issued under this act, to authorize the city of Mobile to levy a special tax to fully pay the interest on said bonds, and to provide for the winding up of the trust created by the act of February 24, 1881.” The contents of the local act are, we think, correctly summarized in brief for appellee. The‘reporter will set it out. The local act mentioned is assailed as constitutionally invalid, under section 105, because the subject-matter was, at the time of its approval, already provided for by the general law approved February 26, 1903. Under the doctrine of the Reese Gase, and of its successors noted, and "in the light of the rulings in Mobile v. Watson and in Amy v. Selma, supra, we see no escape from the conclusion that the objection is well taken, and that the local act assailed is, for that reason, void. The subject-matter of each act, the general [205] and the local, is substantially the same; the latter being more ample in legislatively fixed detail of accomplishment of the purpose common to both acts. In. consequence, the judgment appealed from must be reversed; and one will he here entered denying the writ to the depository and dismissing the petition. Reversed and rendered. Dowdell, O. J., and Simpson and Mayfield, JJ., concur.