Opinion
1 Div. 97.
April 11, 1940.
Appeal from Circuit Court, Mobile County; J. Blocker Thornton, Judge.
Vernol R. Jansen, of Mobile, for appellants.
Act No. 385 of 1931 is offensive to Section 45 of the Constitution. Ballentyne v. Wickersham, 75 Ala. 533; Board of Revenue v. Jansen, 224 Ala. 240, 139 So. 358; McCoy v. Jefferson County, 232 Ala. 651, 169 So. 304, 305; Street v. Hooten, 131 Ala. 492, 32 So. 580, 581. It is violative of Constitution, §§ 106 and 110. Ward v. State, 224 Ala. 242, 139 So. 416, 419; Henry v. Wilson, 224 Ala. 261, 139 So. 259; Kearley v. State, 223 Ala. 548, 137 So. 424; Jefferson County v. Busby, 226 Ala. 293, 148 So. 411.
Wm. V. McDermott, of Mobile, for appellees.
Courts of record have power to make declaration when there is actual and subsisting controversy, on which substantial personal or property rights are dependent and the parties are brought into court and heard so that the matter thereby becomes res adjudicata. Gen.Acts 1935, p. 777; Jefferson County v. Johnson, 232 Ala. 406, 168 So. 450; Tuscaloosa County v. Shamblin, 233 Ala. 6, 169 So. 234; Hawkins v. Jefferson County, 233 Ala. 49, 169 So. 720. Remedy under the Declaratory Judgments Act is intended to be alternative, not dependent on absence of other remedies. Borchard, Decl. Judg. 147, 148; Tuscaloosa County v. Shamblin, supra. Where the parties treat the proceedings as sufficient to invoke jurisdiction of the Court, the Supreme Court will do likewise in absence of demurrer or contention to the contrary. Herbert v. Perry, 235 Ala. 71, 177 So. 561; Tuscaloosa County v. Shamblin, supra. The Act of 1931 does not violate Section 45 of the Constitution. Re Opinions of the Justices, 237 Ala. 377, 186 So. 731; Jackson v. Sherrod, 207 Ala. 245, 92 So. 481; City of Ensley v. Cohn, 149 Ala. 316, 42 So. 827; Street v. Hooten, 131 Ala. 492, 32 So. 580; Mobile G. R. Co. v. Commissioners' Court of Pike County, 97 Ala. 105, 11 So. 732; Ex parte Cowert, 92 Ala. 94, 9 So. 225; Ferguson v. Commissioners' Court of Jackson County, 187 Ala. 645, 65 So. 1028; State v. Herzberg, 224 Ala. 636, 141 So. 553; Davis v. City of Tuscumbia, 236 Ala. 552, 183 So. 657; Mitchell v. Walden Motor Co., 235 Ala. 34, 177 So. 151. It is not offensive to Sections 106 and 110. State ex rel. Conrad v. Board of Revenue and Road Com'rs of Mobile County, 231 Ala. 18, 163 So. 345; Cooper v. State ex rel. Hawkins, 226 Ala. 288, 147 So. 432; Ward v. State, 224 Ala. 242, 139 So. 416; State v. Merrill, 218 Ala. 149, 117 So. 473; Reynolds v. Collier, 204 Ala. 38, 85 So. 465; Dearborn v. Johnson, 234 Ala. 84, 173 So. 864.
The only justiciable controversy presented by the pleadings, filed under the Uniform Declaratory Judgment Act, is the constitutionality of Act 385, passed at the regular session of the Legislature 1931 entitled: "An Act to amend an Act entitled 'An Act for the employment, discharge and compensation of Road Patrolmen in all Counties in the State of Alabama, having a population of not less than 92,500 nor more than 150,000 according to the last or any subsequent Federal Census and to define their duties,' approved September 24th, 1923, and to provide for the payment of compensation of such Patrolmen out of the County Treasury and the priority of claims for such compensation." Gen.Acts 1931, p. 454.
This is illustrated by the averments of paragraph five of the bill:
"Your complainants aver that said 1931 General Act No. 385 is in all things constitutional and a legal and valid subsisting act and expression of the Legislature of Alabama. The respondents, however, are ready and willing to comply with said Act if the same is a valid one, but they feel and contend that said Act is unconstitutional and void, and that they cannot and will not now give any force or effect to, or comply with any of the terms of the same because:
"(a) Said 1931 General Act No. 385 is violative of and was passed contrary to Section 45 of the Alabama Constitution of 1901.
"(b) Said 1931 General Act No. 385 is violative of and was passed contrary to Section 106 of the Alabama Constitution of 1901.
"(c) Said 1931 General Act No. 385 is violative of and was passed contrary to Section 110 of the Alabama Constitution of 1901." (Italics supplied.)
The contention that the act violates § 45 of the Constitution is clearly without merit. Street v. Hooten et al., 131 Ala. 492, 32 So. 580; Johnson et al. v. Robinson et al., 238 Ala. 568, 192 So. 412; State ex rel. Camp v. Herzberg, 224 Ala. 636, 141 So. 553.
The same is true as to the other constitutional questions noted above. State ex rel. Camp v. Herzberg, supra.
The decree of the circuit court is corrected, limiting its declaratory effect to the constitutional questions, and as corrected will be affirmed. It is so ordered.
Corrected and affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.