Opinion
1 Div. 77.
January 18, 1940.
Appeal from Circuit Court, Mobile County; J. Blocker Thornton, Judge.
William V. McDermott, of Mobile, for appellant.
The allegations of the petition are sufficient when they show a clear legal right in relator to the order sought, the imperative duty on respondent to perform the same, and that petitioner has no other adequate remedy. State v. Stone, 232 Ala. 16, 166 So. 602; Williams v. Board of Dental Examiners, 222 Ala. 411, 133 So. 11. The repeal of a statute by implication is a matter of legislative intention; it is not favored. State v. Smiley, 219 Ala. 119, 121 So. 398; Ex parte Jones, 212 Ala. 259, 102 So. 234; Tucker v. McLendon, 210 Ala. 562, 98 So. 797; Brown Mercantile Co. v. Yielding Bros., 200 Ala. 412, 76 So. 4; Ferguson v. Com'rs Court of Jackson County, 187 Ala. 645, 65 So. 1028; Birmingham v. Southern Express Co., 164 Ala. 529, 51 So. 159; Parker v. Hubbard, 64 Ala. 203. Nothing short of an irreconcilable conflict between two statutes works a repeal by implication, and if the court can find it possible to allow both statutes to stand without violating sound rules of construction, this will be done. Alford v. Claborne, 229 Ala. 401, 157 So. 226; Coan v. State, 224 Ala. 584, 141 So. 263; State v. White, 160 Ala. 168, 49 So. 78; State v. Houghton, 142 Ala. 90, 38 So. 761; Herr v. Seymour, 76 Ala. 270; Roberts v. Pippin, 75 Ala. 103. A general repealing clause does not operate to repeal an existing statute relating to the same subject matter not in conflict with the provisions of such act. State v. Stiles, 121 Ala. 363, 25 So. 1015.
If there are two acts upon the same subject but with each act having a field of operation, there is no implied repeal. Wallace v. Ball, 205 Ala. 623, 88 So. 442; Gustin v. State, 19 Ala. App. 558, 99 So. 54. A prior statute may be amended by a later statute "so as to read as follows", and setting forth the title of the amended Act in the amendatory act is sufficient. Mitchell v. Walden Motor Co., 235 Ala. 34, 177 So. 151; Allgood v. Sloss-Sheffield Steel Iron Co., 196 Ala. 500, 71 So. 724; Stone v. State, 137 Ala. 1. 34 So. 629; O'Rear v. Jackson, 124 Ala. 298, 26 So. 944; Harper v. State, 109 Ala. 28, 19 So. 857. An amendatory act may extend the classification of cities to which the same shall be applicable, if it is germane to the subject-matter of the original act. State v. Herzberg, 224 Ala. 636, 141 So. 553; Davis v. Tuscumbia, 236 Ala. 552, 183 So. 657. A statute will not be held to be local where by its terms, given a reasonable and fair construction, it may be interpreted as a general law, and its constitutionality sustained, provided no future legislation shall be necessary to carry its major features into effect. State ex rel. Conrad v. Board of Revenue Road Com'rs, 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; State v. Gullatt, 210 Ala. 452, 98 So. 373; Reynolds v. Collier, 204 Ala. 38, 85 So. 465.
V. R. Jansen, of Mobile, for appellees.
The petition does not allege facts establishing definitely and certainly the right of petitioner and the authority, duty and power of respondents. State v. Cunninghame, 216 Ala. 423, 113 So. 309; State ex rel. McCaulley v. Board of Revenue, 230 Ala. 315, 161 So. 112. The act of 1939 repealed the Act of 1931. Gen.Acts 1931, p. 454; Levy, Aronson White v. Jones, 208 Ala. 104, 93 So. 733; Wallace v. Ball, 205 Ala. 623, 88 So. 442, 443. The Act of 1931 violated Section 45 of the Constitution in that it was an amendment of an existing statute by reference to title only, without reenactment and publishing at length. In re Opinions of the Justices, 237 Ala. 377, 186 So. 731; Skinners Ala. Const. 356; Ferguson v. Com'rs Court of Jackson County, 182 Ala. 645, 65 So. 1028; McCoy v. Jefferson County, 232 Ala.Rep. 651, 169 So. 304, 305. Said Act further violated Section 45 in that the amendment was not germane to the act sought to be amended. Barnhill v. Teague, 96 Ala. 207, 11 So. 444; Kendrick v. State, 218 Ala. 277, 120 So. 142; Board of Revenue v. Jansen, 224 Ala. 240, 139 So. 358; Ballentyne v. Wickersham, 75 Ala. 533; Rice v. Wescott, 108 Ala. 353, 18 So. 844. Said Act violated Section 106 of the Constitution; no notice of intention to apply for its passage as a local law was published. Jefferson County v. Busby, 226 Ala. 293, 148 So. 411; Kearley v. State, 223 Ala. 548, 137 So. 424. And was in violation of Section 110 of the Constitution defining same as a local law and same was enacted and published as a general law. Henry v. Wilson, 224 Ala. 261, 139 So. 259; Ward v. State, 224 Ala. 242, 139 So. 416.
Act No. 385, a general law which became effective "July 17, 1931 under Section 125 of the Constitution," without the approval of the Governor, while amendatory in form is original in purpose and scope, changing the classification so as to apply to Counties of a population "of not less than 105,000 nor more than 300,000 according to the last or any subsequent Federal Census" (section 1), and re-enacting the original Act in detail, authorized the sheriff of such counties to appoint necessary highway patrolmen, not to exceed three, with the authority of a deputy sheriff, and for a term not exceeding that of the appointing sheriff, subject to removal by the sheriff. Gen.Acts 1931, p. 454.
This act, if constitutionally enacted, superseded and repealed by implication Act No. 341, approved September 24, 1923. Gen.Acts 1923, p. 367; American Standard Life Ins. Co. v. State, 226 Ala. 383, 147 So. 168; Allgood, Auditor v. Sloss-Sheffield Steel Iron Co., 196 Ala. 500, 71 So. 724.
Therefore, Act No. 333, approved September 1, 1939, "An Act to repeal an act entitled 'An Act to provide for the employment, discharge and compensation of road patrolmen in all counties of the State 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," which in terms repeals the Act "approved September 24, 1923," did not repeal said Act No. 385.
The constitutionality of said Act No. 385, was not raised on the trial, and will not be considered here. Cooper v. State ex rel. Hawkins, 226 Ala. 288, 147 So. 432; Sims v. Tigrett, 229 Ala. 486, 158 So. 326.
The provisions of Local Act No. 87, approved October 12, 1932, Acts 1932, Extra Session, p. 33, do not conflict with the provisions of said General Act No. 385, and therefore said act did not replace said General Act No. 385, but at most suspended the operation of said General Act in so far as it related to Mobile County, substituting the rule of the Local Act. The Legislature had the power to so suspend the general law. Constitution 1901, Article 1, § 21; Pitts v. Culpepper. et al., 229 Ala. 449, 157 So. 841.
The express repeal of said Act No. 87, by Local Act No. 322, approved September 1, 1939, removed said local act from the field and left that field to the general law. Act No. 385.
This is the logic of the opinion of the court in Cook, County Treasurer, v. Burke, Judge, 177 Ala. 155, 58 So. 984, holding there was no difference in legal effect in an act repealing a local law, so as to leave the field to the general law, and an act repealing such local law and re-enacting the general law. See Pitts v. Culpepper et al. supra.
Section 4 of Act No. 385 (Gen.Acts 1931, p. 455) provides that: "The Board of County Commissioners, Board of Revenue and Road Commissioners, or like body, in all such Counties is hereby directed and authorized to purchase such automobile and other equipment, including supplies, such as gasoline, oils, greases, tools, and other apparatus necessary in the operation and maintenance of such automobiles or other equipment as may be requisitioned by the Sheriff for the use of the patrolmen appointed and employed under the provisions of this Act, and to keep said automobiles and other equipment in proper repair." [Italics supplied.]
The Act does not leave to the county body a discretion to supply or not the "necessary" fuel and supplies, but imposes on such body a mandatory duty to do so.
The petition for the issuance of the writ of mandamus is defective, however, in failing to show the fuel embraced in "requisition Number 4736" was "necessary" for the purposes of the patrol, and was subject to ground 7 of the respondents' demurrer, and the court did not err in sustaining the demurrer.
The petitioner refusing to plead further there was nothing left for the court to do except to enter the judgment it did enter.
Affirmed.
THOMAS, BOULDIN, and KNIGHT, JJ., concur.