Opinion
6 Div. 655.
June 27, 1940.
Appeal from Circuit Court, Cullman County; W. W. Callahan, Judge.
H. H. Kinney, of Cullman, and Melvin Hutson, of Decatur, for appellants.
The Act is unconstitutional and void because it contains subject matter not embraced in its title. Ala. Const. § 45; Ex parte Pollard, 40 Ala. 77; Ballentyne v. Wickersham, 75 Ala. 533; Lindsey v. United States Saving L. Asso., 120 Ala. 156, 24 So. 171, 42 L.R.A. 783. No benefit is conferred on courthouse lots or other buildings erected thereon and used by the public of the county, by the improvement of the streets abutting thereon, for which said county can be assessed to the increased value of the property resulting from the benefits to be derived from the improvements. Const. § 223; Huntsville v. Madison Co., 166 Ala. 389, 52 So. 326, 139 Am.St.Rep. 45; Hamrick v. Albertville, 228 Ala. 666, 155 So. 87; Ozark v. Byrd, 225 Ala. 332, 143 So. 168. The title of the act gives notice of a legislative purpose to provide for payment by the county board of an indefinite sum for a specified purpose; whereas the body of the act requires the board to pay it. The act is, therefore, violative of Section 45 of the Constitution. First Nat. Bank v. Hagood, 206 Ala. 308, 89 So. 497; National Surety Co. v. Huntsville, 192 Ala. 82, 68 So. 373. The legislature cannot control the court's construction of statutes as to past transactions by directing such courts or by attempting to legislate the construction for the courts. Caylor v. State, 219 Ala. 12, 121 So. 12; Waters v. State, 25 Ala. App. 144, 142 So. 113. The act violates Section 91 of the Constitution prohibiting taxing of the property of the counties. Gay v. State, 228 Ala. 253, 153 So. 767; Anniston City Land Co. v. State, 160 Ala. 253, 48 So. 659; Birmingham v. State, 233 Ala. 138, 170 So. 64. It is violative of Section 95 of the Constitution in that it destroys the right of the county to pass on the validity of the claim and its right to invoke the statute of limitations. Code 1923, §§ 228, 5680; Marshall County v. Jackson County, 36 Ala. 613; Calhoun County v. Watson, 152 Ala. 554, 44 So. 702; New Farley Nat. Bank v. Montgomery, 203 Ala. 654, 84 So. 815; Sugg v. Davis, 22 Ala. App. 281, 115 So. 152. The decree is erroneous in rendering judgment for respondents under the cross-bill, since the Declaratory Judgment Act makes no provision for judgment to be rendered against either party. Gen.Acts 1935, pp. 777-9.
St. John St. John, of Cullman, for appellees.
The legislature has plenary power to pass any law governing the funds of a county, unless restrained by some provision of the State or Federal Constitution. Y. M. C. A. v. Gunter, 230 Ala. 521, 162 So. 120; Dorman v. State, 34 Ala. 216; Johnson v. Robinson, 238 Ala. 568, 192 So. 412; Cullman County v. Blount County, 160 Ala. 319, 49 So. 315, 18 Ann.Cas. 322. The Act does not contain any subject matter not embraced in the title, and is not offensive to Constitution, § 45. Johnson v. Robinson, supra; Lindsey v. United States Sav. Loan Ass'n, 120 Ala. 156, 24 So. 171, 42 L.R.A. 783. Judson v. Bessemer, 87 Ala. 240, 6 So. 267, 4 L.R.A. 742. Nor is the Act violative of Constitution, § 91 or § 223. Huntsville v. Madison Co., 166 Ala. 389, 52 So. 326, 139 Am.St.Rep. 45; Jefferson Co. v. Birmingham, 235 Ala. 199, 178 So. 226. It is not violative of Section 95, or any other Section of the Constitution. Board of Revenue v. Puckett, 227 Ala. 374, 149 So. 850; Brown v. Parris, 93 Ala. 314, 9 So. 603; Cullman County v. Blount County, supra; Johnson v. Robinson, supra.
By this proceeding the County of Cullman seeks to have invalidated as unconstitutional the local Act of September 13, 1939 (Gen. Local Acts 1939, p. 256), providing for the payment by the County of Cullman to the City of Cullman the cost of certain pavement improvements abutting upon property of the county, which improvements were made, so the title of the act recites, at the instance of the county authorities, and for which costs the legislature thought (Sec. 1 of the Act) the county was morally bound.
It is first insisted that the subject matter of the Act is not clearly expressed in its title and of consequence Section 45 of the Constitution is violated. Lindsay v. United States Saving Loan Association et al., 120 Ala. 156, 24 So. 171, 42 L.R.A. 783. The argument is, in part, that the title says nothing concerning the issuance of a certificate of indebtedness by the county authority and a request that such certificate be paid. But this is but a detail, the title itself giving full notice that provision is to be made for the payment by the county of the cost of this street improvement. Our cases are uniform to the effect that the title need not be an index to the act; nor need it state a catalogue of all the powers intended to be bestowed. Jefferson County v. City of Birmingham, 235 Ala. 199, 178 So. 226. This case is also authority to the effect that the act in question does not violate Section 91 of the Constitution in any respect, and insistence to the contrary needs no further comment here.
We have often observed the plenary power of the legislature unless restrained by some limitation imposed by the State or Federal Constitutions. State v. Murphy, 237 Ala. 332, 186 So. 487, 121 A.L.R. 283. And we have recognized the right of the law making power to pay a moral claim based on equity and justice. Board of Revenue, etc. et al. v. Puckett, 227 Ala. 374, 149 So. 850.
In Cullman County v. Blount County, 160 Ala. 319, 49 So. 315, 18 Ann. Cas. 322, the Court had for consideration such a moral claim between two subdivisions of government, two counties, similar in principal to that here presented, and the local act there in question was fully sustained. That authority also answers the argument here pressed that the act is retroactive and deprives the county of vested rights, and in violation of Section 95 of the Constitution.
These contentions were repudiated in that case and the reasoning of the opinion is equally applicable here. Such constitutional inhibitions have no application to legislation of this character dealing with the moral obligations of one subordinate branch of the government to another. Cullman County v. Blount County, supra.
Much is said in argument upon the question of benefits to the county property with stress upon City of Huntsville v. Madison County, 166 Ala. 389, 52 So. 326, 139 Am.St.Rep. 45, and Section 223 of the Constitution. But that authority considered no local act and nothing therein stated militates against the conclusion here reached. Reference to the matter of benefit to the county as found in the act was but a reference to a criterion to guide the authorities in fixing the amount due. Here the city made out its prima facie case and the cause submitted for final decree with no effort upon the part of the county to counteract the prima facie case thus presented.
This is not a case of assessment of property for local improvement and the fixation of a lien thereon, as under Section 223 of the Constitution. It is simply a case in which the legislature in the exercise of its plenary power recognizes the moral obligation of the county to the city and makes provision for its payment. Board of Revenue v. Puckett, supra; Cullman County v. Blount County, supra.
We have considered the objections to the act in the light of brief of counsel and the lucid and helpful opinion of the chancellor which accompanies his decree, and we find no justification for declaring the act invalid. The county having invoked the aid of a court of equity as to the declaration of its liability vel non under the act had a right to understand that the court would proceed according to its established rules (50 A.L.R. page 44) which authorizes an answer to be made a cross bill (Code 1923, Section 6550) and appropriate relief awarded thereunder. In the decree for the city against the county as prayed in the cross bill the court but followed the established rule in equity matters.
We find no error to reverse and the decree is accordingly affirmed.
Affirmed.
THOMAS, BROWN, and KNIGHT, JJ., concur.