Opinion
1 Div. 788.
June 29, 1933.
Appeal from Circuit Court, Mobile County; Claude A. Grayson, Joel W. Goldsby, and J. Blocker Thornton, Judges.
Smith Johnston and Harry T. Smith Caffey, all of Mobile, for appellants.
Under the express terms of the statute, the old board was not merely abolished, but was to cease to exist, and the new board was to come into being only when the personnel of the new board should be appointed, and notice thereof given, as specified in the act. Appointment of five members of the old board was a condition precedent to the passing of the old board and creation of the new. The statute being plain and unambiguous, there is no room for construction. Home Ins. Co. v. Cobbs. 20 Ala. App. 491, 103 So. 165; Essex Nat. Bank v. Harrison, 57 N.J. Eq. 91, 40 A. 209; 25 R. C. L. § 223; State v. Bracken, 154 Ala. 151, 45 So. 841; Standard Oil Co. v. Birmingham, 202 Ala. 97, 79 So. 489; May v. Head, 210 Ala. 112, 96 So. 869; Board v. McDanal, 213 Ala. 349, 105 So. 191; Blake v. State, 178 Ala. 407, 59 So. 623; State v. Fain Service Sta., 23 Ala. App. 239, 124 So. 119; Ex parte Bozeman, 183 Ala. 91, 63 So. 201; Bozeman v. State. 7 Ala. App. 151, 61 So. 604; L. N. R. Co. v. W. U. T. Co., 195 Ala. 124, 71 So. 118, Ann. Cas. 1917B, 696; Tucker v. McLendon, 210 Ala. 562, 98 So. 797; State v. Foster, 130 Ala. 154, 30 So. 477; White v. Decatur (Ala.App.) 144 So. 872; State v. Praetorians, 226 Ala. 259, 146 So. 411. The Legislature may pass a law that can only become effective upon compliance with some specified condition, and this condition must be strictly met and complied with before the law can become operative. In any case where the interests of the public or any given community are involved, all terms and conditions imposed upon the effective operation of the statute must be strictly complied with. State v. Justice, 200 Ala. 483, 76 So. 425; State v. Hardage, 210 Ala. 666, 98 So. 718; Savage v. Walshe, 26 Ala. 619; Toole v. State, 88 Ala. 158, 7 So. 42; Fuqua v. Mobile, 219 Ala. 1, 121 So. 696; Home Ins. Co. v. Cobbs, supra; 26 A. E. Ency. (2d Ed.) § 632; Ex parte Simonton, 9 Port. (Ala.) 390, 33 Am. Dec. 320; State v. Miller, 3 Ala. 343. The intent of the Legislature must be sought only in its plain and unambiguous language, and it cannot be assumed the members of the Legislature knew Rush was a member of the old board or that he was dead. Barnes v. Mayor, etc., 19 Ala. 707; Richmond v. Henricho County, 83 Va. 204, 2 S.E. 26; Ex parte Goodrich, 160 Cal. 410, 117 P. 451, Ann. Cas. 1913A, 56; Harlow v. Jones, 37 Ariz. 396, 294 P. 1106; Abernethy v. Board, 169 N.C. 631, 86 S.E. 577; State v. Partlow, 91 N.C. 550, 49 Am. Rep. 652. The impossibility of performing a condition precedent to the effective operation of a statute or impossibility of complying with the terms of a statute necessarily renders it invalid. State v. Bracken, supra; Standard Oil Co. v. Birmingham, supra; Pendley v. Commissioners' Court, 185 Ala. 523, 64 So. 592; State v. Board of Revenue, 180 Ala. 514, 61 So. 814; State v. City of Ely, 129 Minn. 40, 151 N.W. 545, Ann. Cas. 1916B, 189; People v. Sweitzer, 266 Ill. 459, 107 N.E. 902, Ann. Cas. 1916B, 586; 25 R. C. L. 810; 59 C. J. 620; 26 Ency. of Law (2d Ed.) 656.
Pillans, Cowley Gresham, Robert H. Smith, Mahorner Mahorner, Vernol R. Jansen, and Lyons, Chamberlain Courtney, all of Mobile, for appellee.
It is the imperative duty of the courts to uphold a statute when it is fairly susceptible of two constructions, one of which will uphold and the other defeat it. The reference in the statute to the board "as at present constituted" can only mean as constituted when the act goes into effect. Hawkins v. Roberts Son, 122 Ala. 130, 27 So. 327; State v. Pitts, 160 Ala. 133, 49 So. 441, 686, 135 Am. St. Rep. 79; State v. Greene, 154 Ala. 249, 46 So. 268; State v. Board of Revenue, 180 Ala. 489, 61 So. 368; 59 C. J. 1096; 25 R. C. L. 1000. A literal interpretation will not be adopted when it would defeat the purpose of a statute, if any other reasonable construction can be given. Harrington v. State, 200 Ala. 480, 76 So. 422; Thompson v. State, 20 Ala. 54; Stewart v. L. N. R. Co., 83 Ala. 493, 4 So. 373; 25 R. C. L. 958, 967, 1019; 59 C. J. 957, 1016. The intent of the lawmaker is the law. Birmingham v. So. Ex. Co., 164 Ala. 529, 51 So. 159; Graham v. Mobile, 17 Ala. App. 19, 81 So. 355; State v. Birmingham S. R. Co., 182 Ala. 475, 62 So. 77, Ann. Cas. 1915D, 436; 59 C. J. 948, 968, 1105; Nunez v. Borden, 226 Ala. 381, 147 So. 166; Cocciola v. Wood-Dickerson Co., 136 Ala. 532, 33 So. 856; Davis v. Thomas, 154 Ala. 279, 45 So. 897; 25 R. C. L. 960, 978, 998. The provision of the statute that the new board should consist of the two members elected at the general election in 1928 is mandatory only to the extent that it be carried out if physically possible, but permissive if impossible. Montgomery v. Henry, 144 Ala. 629, 39 So. 507, 1 L.R.A. (N.S.) 656, 6 Ann. Cas. 965; 59 C. J. 1072, 1085; Ala. Pine Co. v. Merchants' Bank, 215 Ala. 66, 109 So. 358; Citizens' Bank v. Commissioners' Court, 209 Ala. 646, 96 So. 778; George v. Board of Revenue, 207 Ala. 227, 92 So. 269; Board of Revenue v. Farson, 197 Ala. 375, 72 So. 613, L.R.A. 1918B, 881; Board v. State, 222 Ala. 70, 131 So. 239; 25 R. C. L. 767. Courts always presume the Legislature acts advisedly and with full knowledge of the situation. Chesapeake P. T. Co. v. Manning, 186 U.S. 238, 22 S.Ct. 881, 46 L.Ed. 1144; 2 Lewis' Sutherland, Stat. Const. (2d Ed.) § 497; Erskine v. Nelson County, 4 N.D. 66, 58 N.W. 348, 27 L.R.A. 696; 59 C. J. 1009.
As we understand, the local act of 1933, as set out in the agreed statement of facts, merely changes the membership of the school board from five to seven, leaving the powers and duties practically the same as those of the old board. While the act requires and contemplates the election by the Senate of the entire seven members, it expressly requires that the old board of five shall be included in the new board of seven, thus giving the Senate no discretion whatever except as to the personnel of the two new or additional members. The act is in plain and unambiguous language in this respect, and the Senate had no power to name but two members in addition to the five old members. It is contended, however, that a compliance with the plain terms of the act was impossible because of the death of Dr. Rush, one of the old members, before the present act was passed and the new board was named, and the act should be construed so as to give it a field of operation instead of declaring the same abortive. This might be done if such a construction was not repugnant to, and contradictory of, the plain words of the act. It not only requires the election of the old board, but specifies and classifies the respective terms of the new board, placing therein those of the old board as per the years when elected, and so places Dr. Rush as if he had been named in the act, and the Senate was not empowered to name three new members or substitute a new man for one who had been elected in 1928 or other specified years. To hold that the act sanctioned what was done by the Senate would contradict the plain language of same and render it a different law from the one advertised and passed. The publication of the act gave the citizens of Mobile notice that their old board would be retained and the Senate would only undertake to name two new members. On the other hand, if the public knew of the death of Dr. Rush, when the act was published, they knew that a compliance therewith would be impossible and would render the same abortive, and had the right to assume that it would not be amended or construed by the courts so as to make it different from the one published, and were thereby lulled into nonaction as to any opposition to same. Alford v. Hicks, 142 Ala. 355, 38 So. 752.
The fact that the nonexistence of a material part of the subject-matter of the act rendered the same impossible of operation, to this extent, will not justify the court in construing the same so as to make it operative in the very teeth of the plain and unambiguous language of same. State ex rel. Leslie et al. v. Bracken et al., 154 Ala. 151, 45 So. 841.
We therefore hold that the act in question was an attempt to do the impossible and is void and nonenforceable. The circuit court erred in denying the relator the relief sought, and the judgment is reversed and one here rendered ousting the respondent from membership of the school board.
Reversed and rendered.
ANDERSON, C. J., and THOMAS, BOULDIN, BROWN, and KNIGHT, JJ., concur.
The act of 1933 merely enlarged the board by adding two members to the five as then constituted. The provision that five of them should be persons out of and from the board as constituted of course assumes that at the time the five offices on the board were filled. The effect was to carry the board as then constituted into and form that much of the new. If one of those offices was vacant, it went into the new board as a vacancy, subject to be filled as such, for which provision was made by the act.
Viewing it on another theory, if the new act created a new office, at once effective, but named as its first incumbent one who is dead, or named as the qualifications of the one who shall be its first incumbent such as were possessed only by one who was then dead, should not, in my opinion, have the effect of annulling the act altogether. It is only the first incumbent whose qualifications are thus prescribed, and I think that such situation is the same as the creation of a new office with no provision for filling it. When such situation exists, the best rule, I think, is that there is at once a vacancy to be filled pursuant to the law which regulates the method of filling vacancies generally speaking. 46 Corpus Juris, 973 (118), 976 (notes 92 and 93).
I cannot therefore concur in the majority opinion.
GARDNER, J., concurs in the foregoing.