Opinion
1 Div. 318.
May 29, 1924. Rehearing Denied June 30, 1924.
Appeal from Circuit Court, Monroe County; John D Leigh, Judge.
Hybart Hare, of Monroeville, for appellants.
If by any reasonable construction repugnant acts can be reconciled, a later act must not operate to repeal an earlier one. City v. National Asso., 108 Ala. 336, 18 So. 816; Fuller v. Am. Supp. Co., 185 Ala. 512, 64 So. 549; 36 Cyc. 1077; 23 Am. Eng. Ency. L. (1st Ed.) 393; Cook v. Meyer, 73 Ala. 580, Herr v Seymour, 76 Ala. 270. The court cannot, of its notion what ought to have been done, cure inanities of a statute. State v Lamar, 178 Ala. 77, 59 So. 473 Maxwell v. State, 89 Ala. 150, 7 So. 824; Blake v. State, 178 Ala. 407, 59 So. 623; Lehman v. Robinson, 59 Ala. 219. The act of 1901 is violative of the Constitution. Const. 1901, 45.
L. S. Biggs, of Monroeville, for appellee.
The act of 1901 is valid, and repeals the former act. Bivin v. State, 18 Ala. App. 8, 88 So. 53.
J. F. Bayles and 12 others, resident freeholders, who reside within a certain district, accurately described, in beat 7, in Monroe county, by petition to the board of revenue of the county in writing, sought to have established a stock law district to prevent all stock, except sheep, from running at large therein. The petition accurately described the district, and it was a part of beat 7. The petition was filed under an act approved February 28, 1881 [Acts 1880-81, p. 163], and the board of revenue of Monroe county at the hearing of the cause under the authority conferred by section 3 of the above act granted the petition and established by an order of the court by a vote of three to one of the members of the board a stock law district in that part of beat 7 described in the petition, and bounded as follows:
"Beginning at Davis Ferry and Alabama river in beat 7, Monroe county, Ala., running along the south and west side of Davis Ferry road to the intersection of the Bell's Landing and Monroeville road, at Camp Watts, thence along the west side of Monroeville and Bell's Landing road to Graham bridge, thence along Flat creek to Alabama river, thence up said river to the point of beginning In which all stock, except sheep, are prohibited by law from running at large. This order shall have full force and effect after 30 days from this date."
J. M. Ikner, a resident freeholder of the district, on the same day the order was made by the board of revenue establishing this stock law district, filed with them a petition to revoke and rescind the order on the ground it was made without authority of law; that they have no authority to establish stock law districts except by an election based on a majority of ballots cast at such election in favor of the stock law by the qualified electors under an act approved March 2, 1901 (Acts 1900-01, p. 2009). The board of revenue by an order overruled and denied the petition of J M. Ikner on the same day it was filed with them. J. M. Ikner then filed with the judge of the circuit court of Monroe county a petition for writ of certiorari directed to the board of revenue or judge of probate of the county, directing them to certify a complete and full copy of the proceedings in the foregoing cause for review by the circuit court, and seeking on the final hearing of the cause to have the court declare the order establishing the stock law district null and void, and of no force and effect. The petition for writ of certiorari was granted, and on the final hearing the circuit court held and ordered that the establishing of the stock law district, as described in the order of the board of revenue, is null and void, having been passed and established by the board of revenue without authority of law The board of revenue appeal from this judgment, and it is the error assigned.
As we view the record two questions are presented for the consideration of the court:
First. Is section 11 of the act of 1901 (Acts 1900-01, p. 2013) unconstitutional? Does it violate that part of section 45 of the Constitution of 1901 which is the same as in the 1875 Constitution (article 4, § 2), which states:
"Each law shall contain but one subject, which shall be clearly expressed in its title."
Second. Does the Stock Law Act of 1900-01, p. 2009, repeal the Stock Act of 1880-81, p. 163, in part, in so far as it applies to Monroe county? Both of these acts have been considered by this court before, but not on the matters as here presented. The act of 1901 appears in Bivin v. State, 18 Ala. App. 8, 88 So. 53, and the act of 1880-81 in Dunn v. Wilcox County, 85 Ala. 144, 4 So. 661.
The act of 1881 authorizes, in section 1, the board of revenue of Monroe county to establish districts in the county in which stock shall not be allowed to run at large, and to abolish such districts heretofore or hereafter established.
The act of 1901 does not change or interfere with this authority granted by the Legislature to the board of revenue in act of 1881 to establish and to abolish stock law districts; but it provides a method for establishing, changing or abolishing stock law districts in Monroe county. The former act of 1881 also provided a method for establishing and abolishing stock law districts. Do the methods of each act differ? Can they be reconciled with each other? The act of 1881 authorizes and directs the board of revenue, when 10 freeholders, in the manner prescribed by section 2 of the act, desire to establish or abolish a stock law district, to give notice of the application or petition, and they, under section 3 of the act, must hear the petitioners and any persons that may be opposed thereto, and must make an order granting or dismissing the petition, in whole or in part. Such order must clearly describe the district therein established or abolished, and such order goes into effect 30 days after it is made by the board of revenue.
The act of 1901 provides that, when 10 or more freeholders of the district file petitions to establish, change the boundaries of, or abolish a stock law district, and deposit money with the judge of probate sufficient to defray the expenses of calling and holding an election in such district, then the judge of probate will order an election to be held in such district; notice thereof shall be given; all resident freeholders of such district shall be qualified electors at such election; an election shall be held, and ballots with stock law or no stock law written or printed thereon shall be used by the electors to indicate their vote by making a mark on the ballot by one or the other of such words; and a majority of ballots cast at such election for or against establishing, changing the boundaries of, or abolishing a stock law district will determine the issue presented by the petitioners when the ballots are counted and the result declared by the board of revenue, and the same is entered on the minutes of the court.
In the act of 1881 it is the duty of the board of revenue to hear the petitioners and the persons opposed to the petition, and then to grant or dismiss it. In the act of 1901 the board of revenue grant or dismiss the petition, according to and as directed by the vote of a majority of ballots cast at an election held in the district by the resident freeholders of the district. The two modes provided by the two acts for establishing, abolishing, or changing the boundary lines of a stock law district in Monroe county are irreconcilable. The latter act is in the matters mentioned repugnant to the former act. They are in direct conflict, and cannot be reconciled with each other. So we must hold the act of 1901 repeals and abolishes the act of 1881, and all previous laws, in so far as they relate to the manner and mode of establishing, changing the boundaries, or abolishing stock law districts in Monroe county. City of Montgomery v. Nat. Bk. L. Ass'n, 108 Ala. 336, 18 So. 816; Cook v. Meyer, 73 Ala. 580; Herr v Seymour, 76 Ala. 270.
Under an act approved January 28, 1897 (Gen. Acts 1896-97, p. 434), a stock law district was created as described in section I of the act, composed of beats 3, 4, 5, 6, 7, 8, 9, and 10, or parts of said beats, which are particularly described in section 1 of the act. This act makes no provision for establishing, changing, or abolishing stock law districts. It appears this act included in that stock law district the territory involved in this cause. The act of 1901 proposes in its title and does in its body provide a method for establishing, changing, or abolishing stock law districts in Monroe county and to repeal an act to prevent stock from running at large in certain parts of Monroe county, approved January 28, 1897, so far as the same applies to certain parts of beats 3 and 7 in said county. The territory involved in this cause in beat 7 by this act of 1901 was taken out of the stock law district established by the act of 1897.
The act of 1901 provides the only mode and manner of establishing, changing, and abolishing stock law districts in Monroe county. That was its design and purpose, indicated by its title, in addition to repealing the stock law districts in parts of beats 3 and 7. Its title reads as follows:
"To provide a method for establishing, changing or abolishing stock law districts in Monroe county, and to repeal an act to prevent stock from running at large in certain parts of Monroe county, approved Jan. 28, 1897, so far as the same applies to certain parts of beats 3 and 7 of said county."
Sections 1, 2, 3, 4, 5, 6, 7, 9, and 10 of this act of 1901 relate to and provide the manner and mode of establishing, changing, or abolishing stock law districts in Monroe county. Section 12 of the act repeals, as indicated by the title, a stock law established by act of 1897 in so far as it applies to certain parts of beats 3 and 7 therein described. Section 11 of this act states:
"That the provisions of this act shall not apply to beats 3, 4, 5, 6, 7, 8, 9, 10, in said counties, except as hereinafter provided."
The words "except hereinafter provided" refer to section 12, which repeals the stock law in parts of beats 3 and 7.
The appellants insist that the act of 1901 does not apply to beats 3, 4, 5, 6, 7, 8, 9, and 10 of Monroe county; that it applies only to beats 1, 2, 11, 12, 13, and 14 of the county. Appellants contend, if any ten freeholders in beats 3, 4, 5, 6, 7, 8, and 10 desire a stock law established, changed, abolished, they must apply under the act of 1881, and the board of revenue must hear and pass on it, grant or dismiss it, and that the territory involved in this cause is a part of beat 7, and the board of revenue properly heard and allowed the petition presented under the act of 1881, and established that stock law district in a part of beat 7.
Under section 45 of the Constitution of 1901, and section 2 of article 4 of the Constitution of 1875, we find this provision:
"Each law shall contain but one subject, which shall be clearly expressed in its title."
The title to this act clearly states its purpose is to provide a method for establishing, changing, or abolishing stock law districts in Monroe county. It purports in its title to provide a method for Monroe county, not for beats 1, 2, 11, 12, 13, and 14 in Monroe county. There is nothing in the title of the act to indicate in any manner that the act intended in its body, in "its subject," to provide a method for establishing, changing, or abolishing stock law districts in beats 1, 2, 11, 12, 13, and 14 in Monroe county, and allowing the method provided in the act of 1881 to apply to beats 3, 4, 5, 6, 7, 8, 9, and 10 in Monroe county. The provision of section 11 of the act is contrary to the statement in the title of the act; it contradicts it in part. The title clearly states it is to apply to Monroe county. There is no intimation in its title that it would apply to only six beats in the county, and the act of 1881 would apply to the other eight beats. The title of the act proposes one method to establish, change, or abolish stock law districts for the entire county of Monroe. The body of the act attempts to provide two separate, distinct, and strikingly different modes of establishing, changing, or abolishing stock law districts in Monroe county, one to apply to six beats and the other to apply to eight beats. Section 11 of the act seeks to have eight beats of the county exempted from the operation of the act. This intent to prevent the application of the act to these beats does not appear in the title of the act.
The provision as to the application of the act, stated in section 11, is not clearly expressed in the title of the act. It is contrary to the title. This section (11) of the act must be declared unconstitutional and void; but the unconstitutionality of this section does not affect the validity of the other provisions of the act of 1901, which are appropriately mentioned in the title. Ex parte Pollard, 40 Ala. 99.
"The object of the constitutional provision was to prevent deception by the inclusion in a bill of matter incongruous with the title." Ex parte Pollard, 40 Ala. 99. See, also, State v. Sayre, 118 Ala. 1, 24 So. 89. The purposes of this constitutional requirement are fully stated in Lindsay v. U.S., etc., Ass'n, 120 Ala. 156, 24 So. 171, 42 L.R.A. 783, and need not be repeated here.
The act of 1901 provides the only method for establishing stock law districts in Monroe county. The board of revenue in this cause followed the method provided by the act of 1881; that method was repealed by the act of 1901, in so far as it applied to Monroe county, so the trial court properly, by its judgment, declared null and void the order of the board of revenue granting the petition of J. F. Bayles and others and establishing the stock law district in that part of beat 7 described in their petition.
Chief Justice ANDERSON, together with Justices SAYRE, SOMERVILLE, GARDNER, THOMAS, and BOULDIN concur in the result, but not in the opinion of the writer. They held and are of the opinion that section 11 of the act of 1901 is not unconstitutional, as pointed out in the opinion, and the proceedings for establishing the stock law district in beat 7 should have been under this act of 1901, and not under the act of 1881, as was held by the trial court, whose opinion is set out in the report of the case.
The judgment is affirmed.
Affirmed.
All the Justices concur as indicated in the opinion.