Mr. Cooley makes pertinent observation of the nature and general powers of municipal corporations: That they "existed at common law and they had there but few powers beyond those of electing their officers and removing their persons. Such corporations might sue and be sued, might have a common seal, might hold property, personal and real, necessary for the corporate purposes, and might convey the same; might make by-laws necessary and proper, but as a rule the powers of these corporations are conferred expressly or impliedly and with a very few exceptions which are incidental powers from the charter of the *Page 290 general law under which they exist is the measure of authority to be exercised, and the trend of the courts has been to confine these corporations to the exercise of those powers only which were granted by the charter, necessarily implied therefrom or that were incidental to the existence. Cooley, Const. Lim. 233, 234." Constitutions of Alabama, p. 154, note to § 89.
And Judge Mayfield remarks that "municipal corporations can hold and own property only for corporate purposes, but, as the Legislature has power to take from the corporation its charter, it would thereby be deprived of its property or corporate capacity to hold it; hence the Legislature has power, at least, to control the property of municipal corporations, but whether the state can directly take away the corporate property or convert it into another use, or take the property to itself, is a different question. It would seem that under our form of government, where a corporation holds property and has acquired vested rights to it, that the Legislature could not confiscate it to its own use; the public faith of the government is pledged against such action. Dartmouth College v. Woodward, 4 Wheat. 518 [4 L.Ed. 629]." Constitutions of Alabama, p. 154, note to § 89.
This court declared that the Legislature may abolish and dissolve a municipal corporation, authorize the appointment of trustees or administrative agency for assets, etc., in such way as not to amount to a "deprivation, permanent or temporary, of the people residing within the territorial limits of said corporation, of the power of local government as they had been accustomed to exercise it, nor a suspension or cessation of such government for any appreciable period of time; but, on the contrary, plainly contemplates the creation of another municipal corporation, to which substantially the same people and the same territory would be subject." Amy Co. v. Selma,77 Ala. 103. See, also, statements of legislative powers of and to municipalities contained in Hare v. Kennerly, 83 Ala. 608,611, 3 So. 683, 685, and City of Ensley v. Simpson, 166 Ala. 366,52 So. 61.
In Hare v. Kennerly, supra, Mr. Justice Somerville said that the framers of our Constitution were "cognizant of the principle that municipal corporations are the mere creatures of legislative power, established as political agencies for the more convenient administration of local government, with such powers as to taxation and other subjects, as the General Assembly may, from time to time, see fit to confer; and that their charters may be repealed, and their corporate existence destroyed, at the pleasure of the sovereignty that brought them into existence. Meriwether v. Garrett, 102 U.S. 472 [26 L.Ed. 197]; Amy v. Selma, 77 Ala. 103."
It was therefore ordained that the Legislature shall not have power to authorize any municipal corporation to pass any laws inconsistent with the general laws of the state. Section 89 of the Constitution of 1901. This provision was introduced into the Constitution of 1875 as section 50, art. 4; section 36, art. 4, Constitution 1868.
The power of municipal corporations to enact ordinances and make by-laws is limited by the federal and state Constitutions, by requiring that their ordinances must harmonize with the general laws and with the charters of the respective corporations, and that they should be reasonable and certain, in harmony with general principles of the common law and that of the state. Mayor of Huntsville v. Phelps, 27 Ala. 55; Holt v. City of Birmingham, 111 Ala. 369, 19 So. 735; Cooley Const. Lim., 240, 242.
When the power over the municipality is exercised, as was done in Amy Co. v. Selma, supra, it will not offend the rule of Dartmouth College v. Woodward, 4 Wheat. 518, 4 L.Ed. 629; Port of Mobile v. Watson (Watson v. Port of Mobile),116 U.S. 289, 6 S.Ct. 398, 29 L.Ed. 620; 47 A.L.R. 139, note. See, also, the cases of City of Huntsville v. Madison County,166 Ala. 389, 52 So. 326, 139 Am. St. Rep. 45; Town of Lineville v. Gauntt, 20 Ala. App. 135, 101 So. 154; (as to limited powers of a municipality, being from statute is the creature of the state); Woco Pep Co. of Montgomery v. City of Montgomery,213 Ala. 452, 105 So. 214; Ligon v. City of Gadsden, 21 Ala. App. 312,107 So. 733. The assumption of the opinion, by Mr. Justice FOSTER, is to the like effect, together with the authorities he has cited and discussed.
With this understanding of the power of the Legislature over its municipalities, or due classifications thereof, it will no doubt be granted that the Legislature had the power to deny to a municipality the right to administer in its municipal or recorder's court any or a limited part or class of its criminal laws. And that is to say, to take from the municipality the right of administration of the laws of the public highways, or to permit the same, or to require payment of proceeds of all fines and forfeitures accruing therefrom, or in prosecution of misdemeanors committed thereon, or in relation thereto, under state laws. And the same power existed in the Legislature to so limit the municipal or recorder's court as to offenses or misdemeanors on or growing out of the public highways, whether under state law or municipal ordinances, and to require all fines and forfeitures arising or resulting therefrom to be paid into the state treasury, and to be credited to the funds of the state highway department for the maintenance of roads and bridges.
Has the Legislature done this in the general act "to provide a general system of legislation *Page 291 pertaining to public roads, highways and bridges," etc.? General Acts 1927, pp. 348, 390, § 106. When the provisions of that section are interpreted under the context, and illustrated or aided by the ejusdem generis rule that obtains in this jurisdiction (State v. Western Union Tel. Co., 196 Ala. 570,72 So. 99, and authorities), the legislative intent and exercise of its sovereign power are sufficiently expressed.
The several misdemeanors from which may result or accrue the "fines and forfeitures," made the subject of section 106, are indicated in other provisions of said act; and it is required that "all fines and forfeitures collected upon conviction or upon forfeiture of bail of any person charged with a violation of any of the provisions of this article constituting a misdemeanor shall be within thirty days after such fine or forfeiture is collected forwarded to the state treasurer." And the municipality is limited by the "proviso" which is as follows: "Provided that all fines and forfeitures collected by recorders' courts or other municipal courts for violation of ordinances, in cities and towns of over two thousand population according to the last or any subsequent census, whether for acts constituting violations of the provisions of this article or not, shall be paid into the treasury of such municipality in which the same was collected."
That was to say, in all cases in which municipal or recorder's courts act for violation of the aforestated class of misdemeanors, whether prosecuted under state law or city ordinances, the fines and forfeitures shall be paid into the state treasury. This is the explanation in the context and ejusdem generis rule of the words, "whether for acts constituting violations of the provisions of this article ornot," shall not be paid into the treasury of such municipality in which the same was collected; but, required that roadviolations and misdemeanors under state law or city ordinances be paid to the designated fund in the state treasury. This is the obvious meaning, since the municipality may not ordain contrary to state law.
The administrative effect of the classification of municipalities of 2,000 or less population, according to tests prescribed, is that they may administer the public laws and reasonable ordinances pertaining thereto not inconsistent with state laws, for the benefit of maintenance of roads and bridges; but not as to said "fines and forfeitures" for that of the municipality. Mr. Justice GARDNER concurs in the foregoing.
I find no objection to the act, or section 106 thereof, as offensive to provisions of organic law. There was conformance to requirements of section 45 of the Constitution. The enactment was original and in accord with Ballentyne v. Wickersham, 75 Ala. 533, and the many authorities to like effect.
It should be noted that this act was original in form, and not by way of compliance with section 85 of the Constitution, and was in conformity to the decision in Gibson v. State,214 Ala. 38, 106 So. 231. A casual inspection of Shepard's Alabama Citations, the "Code of Alabama of 1923," "School Codes of 1924 and 1927," and the "Agricultural Code of 1927," may indicate or rather give warning that there is a tendency for extension of the right of the Legislature at "every subsequent period of twelve years, to make provision by law for revising, digesting, and promulgating the public statutes of this state, of a general nature, both civil and criminal," that was not intended by the framers of the Constitution. Section 85. The present act was not enacted by the Legislature as a Code, though it was designated therein as "the Alabama Highway Code." Its several provisions must be tested as those of any original enactment (section 45 et seq., Const.), and not as "revising, digesting, and promulgating the public statutes of this state." Section 85, Constitution.
I am in accord with the pertinent observations made by Mr. Justice BROWN on this point, contained in his concurring opinion, believing, as I do, that the purpose of section 85 of the Constitution for periodical revision and codification of the laws was to bring all of the laws into one body, so that the people may be advised as to what the law is.