Opinion
1 Div. 354, 354-A.
April 21, 1949. Rehearing Denied May 26, 1949.
Appeal from Circuit Court, Mobile County; Cecil F. Bates, Judge.
Bill for declaratory judgment by Horace C. Wilkinson and Thomas E. Skinner against Henry W. Sweet, as Director of the Department of State Docks and Terminals. From an adverse decree, respondent appeals, and complainants cross-assign error.
Modified and affirmed.
The bill is in pertinent part as follows:
"3. On, to-wit, the 26th day of April, 1947, the said Henry W. Sweet, as Director of the Department of State Docks and Terminals, with the approval of the Governor of Alabama, employed the law firm of Wilkinson and Skinner to advise the Director of the Department of State Docks and Terminals about a proposed issue of revenue securities in the face amount of $4,000,000.00 and to prepare such instruments in writing and perform such other services as in their judgment would facilitate a marketing of said securities. In said Contract it was provided,
" 'That said attorneys shall be paid a reasonable fee for services rendered, to be agreed upon between them and the Director of the Department of State Docks and Terminals, and in event they are unable to agree, said fee to be fixed by the Circuit Court of Mobile County, Alabama, plus their reasonable traveling expenses.'
"4. Your petitioners aver that they have fully performed their part of said contract and in the performance of same they prepared needed legislation, which was later enacted by the legislature of Alabama; they prepared a request for the Governor of Alabama to submit to the Justices of the Supreme Court of Alabama for an advisory opinion on said legislation; that they prepared and submitted to said Justices briefs in support of the validity of said legislation; that they prepared the order of the Director for the sale of said securities and the form of said securities and the advertisement for the sale of said securities; the request of the Governor prepared by said attorneys together with a copy of the legislation prepared by them and the form of the order and the securities all set out in an opinion of the Justices reported in [ 249 Ala. 180] 30 So.2d beginning at page 715.
"5. In addition, the Department of State Docks and Terminals agreed to furnish prospective purchasers of said bonds with a validating opinion by the law firm of Chapman and Cutler in Chicago, Illinois and it was necessary for the plaintiffs to hold a number of conferences with said law firm of Chapman and Cutler in Chicago, Illinois, and to travel to and from Birmingham to Chicago and return for said conferences in order to aid in obtaining an opinion from them respecting the validity of said bonds.
"6. In the passage of said act through the legislature, the same was amended by adding thereto Section 7 1/2, which is in words and figures as follows:
" 'Not more than $2,500 of the amount received from the sale of the bonds authorized by this Act or from any other funds of the State of Alabama or of any board, commission, bureau, or other agency of the State, shall be used or expended in payment for the services of an attorney rendered in any manner whatsoever pertaining to this Act, or pertaining to the issuance of the bonds authorized by this Act.'
"Said Act was approved on, to-wit, the 24th day of July, 1947, long after the aforesaid contract of employment was entered into.
"7. Your petitioners and the said Henry W. Sweet, as Director of the Department of State Docks and Terminals, have agreed that a fee of $7,500.00 for services rendered, plus $500.38 for expenses actually incurred by them in traveling from Birmingham to Mobile for conferences with the Director of the Department of State Docks and Terminals at his request, and for traveling from Birmingham to Montgomery and appearing before the Governor and the State Docks Board at the request of the Director and the Governor, and for traveling from Birmingham to Chicago for conferences with the law firm of Chapman and Cutler, whose validating opinion on the bonds was required by prospective customers, making a total of $8,000.38 for services rendered and expenses incurred in connection therewith up to the 23rd day of July, 1947, is fair and reasonable.
"8. Plaintiffs further aver that the Department of State Docks and Terminals called for bids on said bonds which were submitted and opened on, to-wit, the 23rd day of July, 1947. The Governor of Alabama rejected said bids and later called for new bids by advertisement. He and the Director called on plaintiffs to perform additional services under the aforesaid contract of employment including the preparation of the necessary documents in connection with the second call for bids and to hold further conferences with said law firm of Chapman and Cutler and to make numerous trips to Mobile, Alabama, and to prepare contracts and agreements between the Department of State Docks and Terminals and the firm of Sterne, Agee Leach who represented a syndicate of prospective purchasers; that plaintiffs incurred traveling expenses in so doing; and said bonds were sold on December 16, 1947, and plaintiffs further aver that the defendant is ready and willing to agree with plaintiffs on an amount that is reasonable for the additional services rendered and the expenses incurred in connection therewith, but is prevented from doing so by said Section 7 1/2 of said Act 211.
"But for the purported addition of Section 7 1/2 to the aforesaid act, known as Act No. 211, the said Henry W. Sweet, as Director of the Department of State Docks and Terminals, would pay said law firm of Wilkinson and Skinner the aforesaid sum of $8,000.38 and agree with them on a reasonable fee and expenses for said additional services rendered. He claims that said section is a valid enactment and is a limitation on his authority to pay said law firm, and a limitation on the power of the Governor of Alabama to pay or approve the payment of any sum to any law firm in excess of $2,500.00. The Director of the Department of State Docks and Terminals has paid said law firm the sum of $2,500.00 and is ready, willing and able to pay them the difference between $2,500.00 and $8,000.38, if said Section 7 1/2, above referred to, is an invalid enactment.
"Your petitioners aver that said Section 7 1/2 is unconstitutional, null and is no limitation on the power or authority of the Director of the Department of State Docks and Terminals or the Governor of Alabama to pay your petitioners the amount it has been agreed is fair and reasonable for services rendered, plus their expenses for the following reasons:
"(a) Said Section 7 1/2 is a subject not clearly expressed in the title of said act as required by Section 45 of the Constitution of Alabama, and, therefore, violates said section of said Constitution and is null and void.
"(b) Said Section 7 1/2 of said Act No. 211 violates Section 22 of the Constitution of Alabama prohibiting the legislature of Alabama from enacting any law impairing the obligation of contracts, in that petitioners' contract with the Director of the Department of State Docks and Terminals, which was approved by the Governor of Alabama, was made, entered into and approved and partially performed long before the enactment of said Act No. 211.
"(c) Said Section 7 1/2 of Act No. 211 has no application to a contract for the services of an attorney and approved prior to passage and approval of said Act No. 211.
"9. The Director of the Department of State Docks and Terminals declines to pay your petitioners the difference between $2,500.00 and $8,000.38, and declines to agree with them on a reasonable fee for the additional services rendered and on a reasonable amount for expenses in connection therewith for the reasons aforesaid, and claims and contends that he is without lawful authority to pay said difference to said law firm because of the alleged limitation imposed on him by Section 7 1/2 of said Act No. 211."
The prayer of the bill is for a decree declaring:
"1. That Section 7 1/2 in Act No. 211 violates Section 45 of the Constitution of Alabama and is unconstitutional, null and void.
"2. That Section 7 1/2 of Act No. 211 does not apply to petitioners' contract for services, which contract was entered into and approved long prior to the enactment of said act.
"3. That Act No. 211 is no limitation on the authority of the Director of the Department of State Docks and Terminals to pay petitioners a reasonable fee for services rendered under the contract referred to in the petition.
"4. That it is the duty of Henry W. Sweet, as Director of the Department of State Docks and Terminals to forthwith and immediately pay petitioners $5,500.38 and to agree with them on a reasonable fee for the additional services rendered and on a reasonable sum for expenses incurred in connection therewith; and petitioners pray for such other, further, general, special and appropriate relief as they may be entitled to, for which they will as in duty bound ever pray."
The trial court decreed as follows:
"This cause coming on to be heard was submitted to the Court upon the sworn petition of the petitioners and the answer of the defendant, and same being argued by counsel and understood by the Court, the Court is of the opinion that the petitioners are entitled to the relief prayed for in the petition. It is therefore, Ordered, Adjudged and Decreed by the Court as follows:
"1. That Section 7 1/2 in said Act No. 211 violates Section 22 of the Constitution of Alabama in that it impairs the obligation of an already existing contract between the law firm Wilkinson Skinner, Attorneys, and the Department of State Docks Terminals.
"2. Said Section 7 1/2 being null and void and of no effect is no impediment to the payment of the fee agreed upon between the petitioners and the defendant and is no limitation upon the authority of the defendant to pay the petitioners a reasonable fee for services rendered under the contract set forth in the petition.
"3. It is the duty of Henry W. Sweet, as Director of the Department of State Docks and Terminals to undertake to agree with the law firm of Wilkinson Skinner on a reasonable fee for additional services rendered as alleged in the petition and on a reasonable sum to be paid them for expenses incurred for traveling in connection with the performance of their duties under their employment.
"4. Inasmuch as the Court has ruled that Section 7 1/2 in said Act No. 211 is null and void because it violates Section 22 of the Constitution of Alabama, it is not necessary to determine whether or not said Section offends Section 45 of the Constitution of Alabama.
"5. The costs of this proceeding are hereby taxed against the defendant."
Chas. Hoffman, of Mobile, for appellant.
The bill is without equity in that it seeks affirmative action involving the property rights of the Department of State Docks and Terminals, an agency of the State. Constitution 1901, Sec. 14; State Docks Comm. v. Barnes, 225 Ala. 403, 143 So. 581; State Docks Comm. v. Sossaman, 227 Ala. 700, 149 So. 923; Alabama Ind. School v. Addler, 144 Ala. 555, 42 So. 116, 113 Am.St.Rep. 58; Consolidated Ind. Ins. Co. v. Texas Co., 224 Ala. 349, 140 So. 566; Dunn Const. Co. v. State Board of Adj., 234 Ala. 372, 175 So. 383; Ballenger Const. Co. v. State Board of Adj., 234 Ala. 377, 175 So. 387; State Tax Comm. v. Commercial Realty Co., 236 Ala. 358, 182 So. 31; Riddick v. American Emp. Ins. Co., 236 Ala. 323, 182 So. 45; Raible Co. v. State Tax Comm., 239 Ala. 41, 194 So. 560; State v. Inman, 239 Ala. 348, 195 So. 448; Curry v. Woodstock Slag Corp., 242 Ala. 379, 6 So.2d 479; State v. Louis Pizitz Dry Goods Co., 243 Ala. 629, 11 So.2d 342; Alabama Girls Ind. School v. Reynolds, 143 Ala. 579, 42 So. 114; Cox v. Board of Trustees, 161 Ala. 639, 49 So. 814; Harman v. Alabama College, 235 Ala. 148, 177 So. 747; Barlowe v. Employers Ins. Co., 237 Ala. 665, 188 So. 896; Glass v. Prudential Ins. Co. of America, 246 Ala. 579, 22 So.2d 13. The decree of the trial court is void for failure to comply with rules of equity practice. Equity Rules 57, 58, 71; Mullen v. First Nat. Bank, 226 Ala. 305, 146 So. 802; Simpson v. James R. Crowe Post No. 27, American Legion, 230 Ala. 487, 161 So. 705; Cox v. Dunn, 243 Ala. 176, 9 So.2d 1. Section 22 of the Constitution of Alabama, relating to impairment of contracts, has no application to obligations, contracts and agreements of the State as to the conduct or management of the State departments and agencies. Trustees of Dartmouth College v. Woodworth, 4 Wheat. 518, 4 L.Ed. 629; Newton v. Board of Mahoning County Com'rs, 100 U.S. 548, 25 L.Ed. 710; Stevens v. Thames, 204 Ala. 487, 86 So. 77; State Docks Comm. v. State ex rel. Cummings, 227 Ala. 414, 150 So. 345; State Docks Comm. v. State ex rel. Jones, 227 Ala. 521, 150 So. 537; Hard v. State ex rel. Awen, 228 Ala. 517, 154 So. 77. An enactment by the legislature under police power of the State, fixing maximum compensation for services to be rendered to the State does not violate Section 22 of the Constitution, with respect to an agreement made prior to passage of such act. Persons agreeing to perform personal services for the State on part-time basis are employees of the State for the limited purposes of the agreement. Authorities, supra.
Wilkinson Skinner, of Birmingham, for appellees.
This is not a suit against the State. Curry v. Woodstock Slag Corp., 242 Ala. 379, 6 So.2d 479; State v. Louis Pizitz Dry Goods Co., 243 Ala. 629, 11 So.2d 342; International Paper Co. v. Curry, 243 Ala. 228, 9 So.2d 8; Avery Freight Lines v. White, 245 Ala. 618, 18 So.2d 394, 154 A.L.R. 732. The Director had the power to make the contract. Code 1940, Tit. 38, § 10; Cum. Pocket Part, p. 191, § 3. The contract of employment was approved by the Governor. Code, Tit. 38, § 36. The law in force at the time of the making of a contract becomes a part of it. Com'rs Court of Limestone County v. Rather, 48 Ala. 433. A state can no more impair its own contracts, or contracts entered into pursuant to its authority, than it can impair contracts between individuals. Alabama Florida R. Co. v. Burkett, 46 Ala. 569; Slaughter v. Mobile County, 73 Ala. 134; Hard v. State ex rel. Baker, 228 Ala. 517, 154 So. 77; Edwards v. Williamson, 70 Ala. 145. When the terms of an act of the legislature have been accepted and acted upon in part, it is not competent for the legislature by subsequent act to impose additional limitations or revoke authority conferred by the former act. Tenn. C. R. Co. v. Moore, 36 Ala. 371. Section 22 of the Constitution protects appellees' contract of employment. Hall v. State of Wisconsin, 103 U.S. 5, 26 L.Ed. 302. The subject-matter of § 7 1/2 of the act is not embraced in the title, and said section is no part of the act. Ballentyne v. Wickersham, 75 Ala. 533; Gibson v. State, 214 Ala. 38, 106 So. 231; Houston Co. Board v. Poyner, 236 Ala. 384, 182 So. 455. It is the duty of the Director to pay complainants the amount claimed; the contract was approved by the Governor. Code 1940, Tit. 38, § 36; State ex rel. Turner v. Henderson, 199 Ala. 244, 74 So. 344, L.R.A.1917F, 770. The rules of practice were sufficiently complied with. There is nothing to show the submission was not by agreement, and there was no objection or question raised as to the submission in the trial court. Riley v. Wilkinson, 247 Ala. 231, 23 So.2d 582; Ward v. Chambless, 238 Ala. 165, 189 So. 890; Cobbs v. Norville, 227 Ala. 621, 151 So. 576; Whitworth v. Hart, 22 Ala. 343; Beasley v. Beasley, 248 Ala. 690, 29 So.2d 232.
This is a suit filed by appellees, who are attorneys-at-law, to have determined a controversy between them and appellant as director of the State Department of Docks and Terminals in respect to attorneys' fee claimed by them to be payable under a contract with the director for services in connection with the preparation of an act for the legislature and the legal aspects of a bond issue under it for the enlargement of the State docks at Mobile. The proposed act was considered by the justices as reported in Opinion of the Justices, 249 Ala. 180, 30 So.2d 715: Act of July 24, 1947, General Acts 1947, page 74, Code 1940, Tit. 38, § 45 (7) et seq.
The trial court made declaration favorable to complainants, and the director appeals. Some preliminary questions are raised.
It is first insisted that it is a suit against the State prohibited by section 14 of the Constitution. But all the incidents of a justiciable controversy exist whereby an officer of the State is uncertain in the discharge of his duties as to whether he should pay out of funds under his control and held for the payment of expenses of conducting the department, the claim for such attorneys' fee made by appellees. We have held that such a suit is for the guidance of the parties in the discharge of their duties, although they are State officers, and does not violate section 14, supra. Curry v. Woodstock Slag Corp., 242 Ala. 379, 6 So.2d 479.
As to Rule 58, Code 1940, Tit. 7 Appendix: Submission on Bill and Answer.
The answer admits the material facts on which complainants base their claim, and sets up no facts in avoidance. The declaratory judgment states that the cause coming on to be heard was submitted on the sworn petition and answer of defendant. It is not expressly shown to be thus submitted by agreement of all parties, other than those against whom decrees pro confesso have been lawfully taken as required by Equity Rule 58.
But it will be presumed that this was done at a regular call, and that both parties were present, and no objection being noted consent of all parties will be presumed.
This rule grew out of old chancery procedure, whereby a complainant (but not respondent) could require a submission on bill and answer, without a replication (which had not then been abolished, see Equity Rule 27), and without proof. 1. Daniell's Ch. Pl. Pr., 6th Ed., sections 828, 829, pp. 822, 823. Under the old rule any matter set up in the answer was admitted by a submission on bill and answer without a replication denying it, which replication put the burden on defendant to prove it. But by the abolition of a replication in equity, it is now taken as though such matter were denied and defendant must prove it. See, Equity Rule 25. So that if respondent is willing, there is no reason why complainant may not submit on bill and answer. Cox v. Dunn, 243 Ala. 176, 9 So.2d 1.
Note of Submission.
It is also contended by appellant that there was error because there was no note of the submission signed by the parties or their attorneys showing the proof upon which each rests his case, as required by Equity Rule 57. But this rule does not require a note of the pleadings when they serve merely to set forth the issues. Cox v. Dunn, supra. There was no evidence to be noted by either party.
Merits of the Controversy.
So we find nothing contended for which prevents us from considering the merits of the controversy. They are stated in paragraphs three to nine, inclusive, of the bill, which will be set out in the report of the case. A demurrer to the bill was overruled.
The answer of defendant admits the material allegations of fact stated in the bill, but does not concur in the conclusions of law. The decree on demurrer and the final decree are assigned as error, and the defendant has cross assigned errors for that the decree did not respond to one contention.
Appellees claim that the effort to limit the attorneys' fee to be paid in connection with the bonds and the drafting of the act, as set forth in section 7 1/2 of the Act of July 24, 1947 (see General Acts of 1947, p. 74), contravenes section 22 of the Constitution, in that it would impair the obligation of their contract, and violates section 45 of the Constitution because the subject matter of said section is not clearly expressed in the title, and adds another subject.
Of course to be protected by section 22, supra, plaintiffs must have had a valid binding contract, which imposed an obligation. They rely upon a part of Title 38, section 10, Code, whereby it is provided that "the director shall appoint a secretary-treasurer and as occasion requires may appoint such employees, attorneys, and experts as may be necessary to perform all services needed in the management, operation, and control of the docks and terminal facilities provided for in this chapter." Also that part of Title 38, section 3, as amended July 7, 1945, as follows: "All the powers, authority and duties vested in the department of state docks and terminals and any powers, authorities and duties hereafter vested in the department of state docks and terminals, shall be exercised by the director of state docks and terminals." See, Pocket Part, Title 38, section 3, Code.
It is necessarily contemplated that the director shall contract obligations for the ordinary operation of so large a business. If it is for an amount exceeding $5000, it must be approved by the governor. Title 38, section 36, Code. This obligation was so approved. The authority generally to make contracts of the sort is recognized in State Docks Comm. v. Barnes, 225 Ala. 403, 143 So. 581; State Board of Administration v. Roquemore, 218 Ala. 120, 117 So. 757. They are not State debts, but debts only of the State agency. Harman v. Alabama College, 235 Ala. 148, 177 So. 747. Especially is this true in respect to handling the bond issue here involved. The services of attorneys are necessarily anticipated.
Section 22, Constitution, does not simply inhibit the State from impairing the obligation of contracts between individuals, but with like force and effect the provision applies to contracts made by the State or one of its agencies when authorized by law. Fletcher v. Peck, 6 Cranch, U.S., 87-137, 3 L.Ed. 162; State of Indiana v. Brand, 303 U.S. 95, 58 S.Ct. 443, 82 L.Ed. 685, 113 A.L.R. 1482; Dodge v. Board of Education, 302 U.S. 74, 58 S.Ct. 98, 82 L.Ed. 57; Slaughter v. Mobile County, 73 Ala. 134.
In the case of Hard, Comptroller v. State ex rel. Baker, 228 Ala. 517, 154 So. 77, 81, this Court reviewed certain decisions of this State relating to the power of the legislature to impair the obligation of its contracts, and quoted from them as follows:
"Thus in Stevens v. Thames, 204 Ala. 487, 488, 86 So. 77, 78, opinion by Chief Justice Anderson, it was said that a state agency is 'chargeable with notice of that legal principle that the state could make no legal binding contracts with reference to the future maintenance, management, and control of its governmental or other public agencies. * * * In other words, the contractual clause of the federal and state constitutions has no application to obligations on the part of the state as to the location, conduct, or management of its own institutions. Newton v. Board of County Commissioners of Mahoning County, 100 U.S. 548, 25 L.Ed. 710.'
"We quote the following from Birmingham Mineral Railroad Co. v. Parsons, 100 Ala. 662, 665, 13 So. 602, 603, 27 L.R.A. 263, 46 Am.St.Rep. 92: 'As is well said in American Union Tel. Co. v. Western Union Tel. Co., 67 Ala. 26, 32, 42 Am.Rep. 90: "The police power of a state is a most important power, essential to its very existence, and has been declared by the supreme judicial interpreter of the federal constitution to embrace 'the protection of the lives, health, and property of her citizens, the maintenance of good order, and the preservation of good morals;' and the legislature cannot, by any contract, divest itself of the power to provide for these objects." Boston Beer Co. v. Massachusetts, 97 U.S. 25, 24 L.Ed. 989.' See, also, Ex parte Lambert, 52 Ala. 79."
But in State of Indiana v. Brand, 303 U.S. 95, 58 S.Ct. 443, 450, 82 L.Ed. 685, 113 A.L.R. 1482, the United States Supreme Court in reversing the Indiana Supreme Court, 5 N.E.2d 531, 110 A.L.R. 778, held that state contracts (there considering the teachers tenure act) were binding on the state subject to a proper application of the state's police power, using the following language:
"Our decisions recognize that every contract is made subject to the implied condition that its fulfillment may be frustrated by a proper exercise of the police power but we have repeatedly said that, in order to have this effect, the exercise of the power must be for an end which is in fact public and the means adopted must be reasonably adapted to that end, and the Supreme Court of Indiana has taken the same view in respect of legislation impairing the obligation of the contract of a state instrumentality. The causes of cancellation provided in the act of 1927 and the retention of the system of indefinite contracts in all municipalities except townships by the act of 1933 are persuasive that the repeal of the earlier act by the later was not an exercise of the police power for the attainment of ends to which its exercise may properly be directed." (Italics ours.)
See, also, First National Bank of Birmingham v. Jaffe, 239 Ala. 567, 196 So. 103.
Any interpretation we should make in that connection of that feature of our section 22, Constitution, would be subject to section 10, Article 1 of the Constitution of the United States. So that notwithstanding our earlier ideas of the binding force of such contracts in respect to subsequent legislation, we must apply the construction which the United States Supreme Court has given to section 10, Article 1 of the United States Constitution. This principle was recognized in Hard v. State ex rel. Baker, supra, and thought to be there given effect.
So that the question is whether section 7 1/2 of the Act of 1947, supra, fixing a maximum of $2500.00 for the payment of services of attorneys rendered pertaining to the act or the issuance of bonds under it is an exercise of the police power for an end which is in fact public, and whether such limitation is a means reasonably adapted to that end.
This is illustrated in Home Building Loan Ass'n v. Blaisdell, 290 U.S. 398, 438, 54 S.Ct. 231, 240, 78 L.Ed. 413, 88 A.L.R. 1481, where it is said that such purpose is that which gives temporary relief from the enforcement of contracts in the presence of disasters due to physical causes such as fire, flood, or sometimes when the public need is urgent to economic causes.
It is also said in Worthen Co. v. Thomas, 292 U.S. 426, 54 S.Ct. 816, 818, 78 L.Ed. 1344, 93 A.L.R. 173, that this principle precludes a construction "which would permit the State to adopt as its policy the repudiation of debts or the destruction of contracts or the denial of means to enforce them. We held that when the exercise of the reserved power of the State, in order to meet public need because of a pressing public disaster, relates to the enforcement of existing contracts, that action must be limited by reasonable conditions appropriate to the emergency." See, also, Worthen Co. v. Kavanaugh, 295 U.S. 56, 55 S.Ct. 555, 79 L.Ed. 1298, 97 A.L.R. 905. And in Treigle v. Acme Homestead Ass'n, 297 U.S. 189, 56 S.Ct. 408, 411, 80 L.Ed. 575, 101 A.L.R. 1284, it is said: "Though the obligations of contracts must yield to a proper exercise of the police power, and vested rights cannot inhibit the proper exertion of the power, it must be exercised for an end which is in fact public."
There is nothing set out in the Act of 1947, supra, nor alleged in the answer which shows that section 7 1/2 of the Act was inserted to meet some urgent public need, and we have no judicial knowledge of such need. It appears only as a retrenchment measure apparently directed to an impairment of the obligation of appellees' contract. That is no such need as justifies an exercise of the police power.
While the quotation in the Hard case, supra, from Stevens v. Thames, 204 Ala. 487, 86 So. 77, calls attention to the fact that the contract clauses of the State and Federal Constitutions have no application to obligations on the part of the State as to the location, conduct or management of its own institutions, it must be remembered we are not here dealing with such a situation. That was in respect to the attitude of the State toward such institution. It did not purport to impair contracts of such agency made pursuant to law so as to prevent the agency from performing them. If the State may ruthlessly such contracts, the power of its agency to function would be hampered in a way contrary to public interest. Such agency may bind its officers pursuant to law so as to impose a duty on them to carry out the same beyond impairment by subsequent legislation, although a personal judgment cannot be rendered against the agency. State Docks Comm. v. Barnes, supra.
In the case of Newton v. Commissioners, 100 U.S. 548, 25 L.Ed. 710, cited in Stevens v. Thames, supra, the act was for the removal of a county seat, whereas an act had previously provided that its present location was prematurely established. It was insisted that this created contract rights in certain parties. The court referred to the power of a state to abolish offices which it creates, without impairing contracts, or change the amount of compensation fixed by law, holding that these are governmental subjects and not within the category of contract. And in Fletcher v. Peck, 6 Cranch, U.S., 87, at page 137, 3 L.Ed. 162, it is said with reference to the power of a state to repudiate its contracts: "If contracts made with the state are to be exempted from their operation, the exception must arise from the character of the contracting party." And in the same opinion the question was asked whether it can be said "that a state may pass a law absolving itself from the contract? (The answer was:) It is scarcely to be conceived."
This Court, citing Fletcher v. Peck, supra, held in Slaughter v. Mobile County, 73 Ala. 134, that "State legislatures have no more power to impair the obligation of contracts made pursuant to their authority than they have to impair those of individuals made under like conditions." The Court was dealing with an agency set up by law to function for a county purpose.
It is our view that section 7 1/2 of the Act of 1947, supra, cannot serve to impair the obligations of the contract alleged in the bill to have been made. Its existence as a fact is admitted in the answer.
Section 45 of the Constitution.
It is next insisted that section 7 1/2, supra, violates section 45 of the Constitution, in that no mention is made of such feature in the caption, and insofar as it restricts payment of the maximum it applies not only to funds to be derived from the proposed bond issue, but also "from any other funds of the State of Alabama or of any board, commission, bureau, or other agency of the State," and is not germane to the one subject expressed in the title.
The title of the Act provides for the expansion of the port facilities, to borrow money and issue bonds and sell them, and "to provide the purposes for which such money may be borrowed" and also contains other details. This Act without section 7 1/2, supra, was involved in the question submitted to us by the Governor, and which was answered as reported in Opinion of the Justices, 249 Ala. 180, 30 So.2d 715.
The contract between appellees and appellant, was made April 26, 1947, before the proposed act was introduced for passage. The fee does not purport to be payable out of funds derived from the powers conferred by the Act.
We are not confronted with the question of whether a feature of the Act which provided for a maximum amount, which could be used out of such fund in the payment of attorneys' fees, would violate section 45, supra, without specially so stating in the title.
The rule is that if the bill contains but one subject which is clearly stated in the title any matter which is germane to that subject may be validly included. Ballentyne v. Wickersham, 75 Ala. 533; Johnson v. Robinson, 238 Ala. 568, 192 So. 412; Gibson v. State, 214 Ala. 38, 106 So. 231. But if matter is added which is not germane to the subject as expressed in the title, to that extent it violates section 45, supra, and such matter may be stricken from it, and the act otherwise upheld, subject to certain principles of construction, especially when, as here, the act has a saving clause if any provision is declared to be invalid.
It seems very clear to us that insofar as section 7 1/2, supra, undertakes to limit the amount of attorneys' fees payable under contract, not specially out of funds derived under the Act, but out of any funds of the State or any of its agencies, to that extent it is not germane to the one subject expressed in the title and provided for in the Act.
We think therefore that the inclusion of section 7 1/2, supra, violates section 45 of the Constitution, but its exclusion on that account does not affect the validity of the Act in respect to the one subject included.
Cross assignments.
Appellees complain that the decree of the court did not respond to that feature of the bill which prayed for a declaration that it is the duty of appellant to forthwith and immediately pay appellees $5500.38, the balance unpaid pursuant to the agreement of the parties for services rendered up to July 23, 1947. Such duty is implied in what was so declared in the judgment, but it will be here modified so as to include it in express terms. Further relief is available in this proceeding. Berman v. Wreck-A-Pair Bldg. Co., 234 Ala. 293, 175 So. 269.
As modified, the judgment is affirmed.
STAKELY, J., concurs in the opinion.
BROWN and LIVINGSTON, JJ., concur in the result, and base their concurrence on an application of section 22 of the Constitution by reason of the admitted allegations of the bill contained in the answer.
LAWSON and SIMPSON, JJ., concur in the result and base their opinion on an application of section 45 of the Constitution to section 7 1/2 of the Act of July 24, 1947, supra.