I concur in the majority opinion in everything other than the holding that the Lapsley-Lusk Act (Gen. Acts 1933 [Ex. Sess.] p. 124) does not violate that part of section 45 of the Constitution which requires that every law shall contain but one subject which shall be clearly expressed in the title. In justice to the opinion that I entertain on that subject, I have decided to record my views. This of necessity, also, requires me to consider the Sparks Amendment to the Constitution of Alabama.
The appellee contends that it was beyond the power of the people through the Sparks Amendment (Gen. Acts 1933 [Ex. Sess.] p. 46) to suspend the operation of sections 150 and 281 of the Constitution. No authorities are cited to uphold this contention, neither is the argument persuasive. The people adopted the Constitution of 1901. They are the source and fountainhead thereof, and it would indeed be a paradox to say that the body politic that created the Constitution did not have the power to change it at will. Of course, no change or amendment may contravene the Constitution of the United States.
The Tenth Amendment to the Constitution of the United States specifically provides: "Powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." In construing this section, the Supreme Court of the United States, in the case of The Collector v. Day, 11 Wall. 113, 124,20 L. Ed. 122, said: "It is a familiar rule of construction of the Constitution of the Union, that the sovereign powers vested in the State governments by their respective constitutions, remained unaltered and unimpaired, except so far as they were granted to the government of the United States. That the intention of the framers of the Constitution in this respect might not be misunderstood, this rule of interpretation is expressly declared in the tenth article of the amendments, namely: 'The powers not delegated to the United States are reserved to the States respectively, or, to the people.' "
Section 2 under article 1 of our Declaration of Rights provides: "That all political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit; and that, therefore, they have at all times an inalien able and indefeasible right to change their form of government in such manner as they may deem expedient." *Page 534
While it may be true, as contended by the appellee, that constitutions and their provisions are usually of a permanent character, yet there can be no legitimate reason advanced why the people may not elect to adopt temporary provisions or to suspend, for a period of time, permanent ones. In fact, this was done by the framers of the Constitution of the United States. Under article 1, § 8, of that Constitution, Congress was granted the power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." This provision granted the power to Congress to regulate immigration and the importation of slaves (see Groves et al. v. Slaughter, 15 Pet. 449, 513, 10 L. Ed. 800), but the power granted under this section to regulate or forbid immigration or the importation of slaves was suspended until 1808 by section 9 of article 1, providing that: "The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person."
Again, in our own Constitution, section 216 provides, among other things, that: "The city of Mobile * * * may * * * levy a tax not to exceed three-fourths of one per centum to pay the debt existing on the sixth day of December, eighteen hundred and seventy-five, with interest thereon, or any renewal of such debt." This provision operated only temporarily.
"The people of the State * * * can amend or revise their existing constitution or establish a new one, in such manner as they may think fit under the limitations imposed by the Constitution and laws of the United States." Scruggs v. Mayor, etc., of Huntsville, 45 Ala. 220, 223.
Of course, the mandatory requirements of sections 284 and 285, or of 286, must be complied with before an amendment may be validly adopted. Hooper v. State, 206 Ala. 371, 89 So. 593; Johnson v. Craft, 205 Ala. 386, 87 So. 375.
The appellee further contends that the Sparks Amendment to the Constitution of Alabama (Gen. Acts 1933 [Ex. Sess.] p. 46) was never legally submitted to the people of the state for the reason that the Legislature never appointed a day for the holding of the election for the voting thereon, as required by section 284 of the Constitution. The bill proposing the amendment ordered an election thereon to be held by the qualified electors of the state on the first Tuesday after the expiration of three months from the final adjournment of the session of the Legislature at which the amendment was proposed. It is argued that, since the day of final adjournment of the Legislature was uncertain, the first Tuesday after the expiration of three months from the date of final adjournment of such session was likewise uncertain. To this objection we cannot agree. The law regards that as certain which is capable of being ascertained and definitely fixed. Mobile O. R. Co. v. Tennessee, 153 U.S. 486, 497, 14 S. Ct. 968, 38 L. Ed. 793; U.S. v. Smith, 18 U.S. (5 Wheat.) 153, 159, 5 L. Ed. 57.
The language used in the bill proposing the Sparks Amendment substantially follows the language of the Constitution. There is a very good reason why the Legislature should not be required to designate a specific calendar day. It is beyond human foresight to determine in every instance the time when a session of the Legislature may adjourn. If a bill proposing an amendment is passed by the Legislature, and a specific calendar day appointed, the exigencies of the Legislature might, in the course of events, result in that body adjourning on a date within three months of the day appointed, thereby violating section 284 of the Constitution.
It might also be observed that section 194 1/2 of the Constitution, known as the Poll Tax Exemption Amendment (Acts 1921, p. 4), and article 20 of the Constitution, known as the Road Bond Issue Amendment (Acts 1921, p. 35), were proposed by bills appointing the date of the election on each, as was done in this case. Millions of dollars of bonds were issued under the latter amendment; property rights have vested, and we can see no valid reason why such method of appointment is not sufficient. It is my opinion, therefore, that the Sparks Amendment is now a part of the Constitution of Alabama.
Assuming for the moment that the Lapsley-Lusk Act contains but one subject, is it clearly expressed in the title as required by section 45? The objects of this section of the Constitution have been many times stated. In Ex parte Pollard,40 Ala. 77, 99 (which was quoted with approval by Mr. Justice Brickell in the case of State v. Sayre, 118 Ala. 36,24 So. 89), Mr. Justice Walker stated the following to guide and assist in the construction of this clause of the Constitution, viz.: "The object of the constitutional provision was to prevent deception by the inclusion in a bill of matter incongruous with the title."
Mr. Justice Brickell, in the case of Lindsay v. U.S. Sav. Loan Ass'n, 120 Ala. 156, 172, 24 So. 171, 176, 42 L.R.A. 783, approved the statement of Judge Cooley that there were three purposes for this constitutional requirement, which are as follows:
"First, to prevent 'hodgepodge' or 'logrolling' legislation; second, to prevent surprise or fraud upon the legislature by means of provisions in bills of which the titles give no intimation, and which might therefore be overlooked, and carelessly and unintentionally *Page 535 adopted; and, third, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have the opportunity of being heard thereon, by petition or otherwise, if they shall so desire."
The rules thus defined in the above cases were applied in the case of Pillans et al. v. Hancock et al., 203 Ala. 570, 572,84 So. 757, 759, where Mr. Chief Justice Anderson, speaking for the Supreme Court, said: "While we have heretofore held that this constitutional provision is mandatory, it should be liberally construed in favor of legislative enactments when they are reasonably cognate or germane to the title; but when the title is so misleading and uncertain that the average legislator or person reading the same would not be informed of the purpose of the enactment, it is insufficient."
To the same effect, see Ex parte State ex rel. Davis, Attorney General, 210 Ala. 662, 664, 99 So. 65; Fuqua v. City of Mobile, 219 Ala. 1, 121 So. 696.
We will, therefore, examine the title to the Lapsley-Lusk Act to see if the title is deceptive and misleading as to section 5 thereof, and whether it is incongruous therewith.
"Under our constitution, the title is regarded as an essential part of the law, having a specific object and office — to control the subject of the enactment, and to restrict its provisions and details to such matters as are pertinent and germane to the single subject expressed in the title. * * * One of the main purposes of the clause is to prevent entrapping or deceiving the legislature by alluring or misleading titles." Stein v. Leeper, 78 Ala. 517.
Section 5 of the Lapsley-Lusk Act (Gen. Acts 1933 [Ex. Sess.] pp. 124, 129) provides as follows: "Section 5. As to all salaries herein provided for officers or employees not elected or appointed for any term of office and which salaries are subject to reduction now this Act shall become effective on and after the first day of the month succeeding the approval of this Act; and as to all other salaries herein, this Act shall take effect on the first day of the month next succeeding the ratification of any Constitutional Amendment removing or suspending Constitutional restriction or limitations upon decreasing or diminishing the salary, fees or compensation of any officer, officers or employees during the term for which they shall have been elected or appointed."
The title to the Lapsley-Lusk Act is as follows: "An Act to fix, limit or regulate the salaries and compensation of certain officers and employees of the State or any department thereof; to provide how the same shall be payable; and to provide for the repeal of all laws or parts of laws in conflict with the provisions of this Act; and to provide when the provisions of this Act shall become effective."
Is section 5 of the act clearly expressed in the title? If not, does the title mislead and deceive as to the body of the act?
In the case of Ballentyne v. Wickersham, 75 Ala. 533, Mr. Justice Stone, speaking to the question, said: "There was a second abuse, against which this provision was levelled. The subject of the act 'shall be clearly expressed in the title.' The intention of this was, that the title of the act or bill should inform the members of the legislature, and perhaps the public, of the subject on which the former were invited to vote and legislate. Matters foreign to the main objects of the bill had sometimes found their way into bills — surreptitiously, at times, it was charged — and thus the members were induced to vote for measures in ignorance of what they were doing."
This court, in a number of decisions, has held that if the title of the act is misleading and deceptive of the body of the act, then section 45 of the Constitution is violated, since the subject is not then clearly expressed in the title.
In the case of Wallace v. Ball, 205 Ala. 623, 88 So. 442,444, the Supreme Court held an act to be violative of section 45 where the title indicated a prospective operation while the body of the act gave it a retrospective as well as aprospective operation. In the body of the act was found a provision that it should apply to bonds already authorized to be issued, as well as bonds thereafter authorized. Mr. Justice Miller, speaking for the court, said:
"This act, in its body, makes it apply to bonds heretofore and hereafter authorized to be issued. It is prospective and retrospective as to the bonds and the interest and the discount thereon and the authority to issue them. The title of the act does not refer clearly to its retrospective and discount intent and purpose. In this it is strikingly misleading, and calculated to spring a 'surprise on the Legislature.' It looks like the design of the act is to cure ills in or care for bonds of the past rather than to provide for the future. The title looks to the future, and not to the past; but the body has oil for the sores of the past as well as the ills of the future. 'Prospective laws are the rule, and retrospective laws are the exception.' If the body of an act contains both, the title should clearly contain both.
"Does not section 45 of the Constitution condemn and declare void that part of this act which attempts to regulate the sale below par of, and to increase the interest on bonds heretofore authorized by the voters of a county to be issued? We think so; this heretofore retrospective, past, and discount *Page 536 subject not being clearly expressed in its title." Lindsay v. U.S. Sav. Loan Ass'n, 120 Ala. 156, 24 So. 171, 42 L.R.A. 783; Barrington v. Barrington, 200 Ala. 315, 76 So. 81.
The case of Lindsay v. U.S. Sav. Loan Ass'n, 120 Ala. 156,24 So. 171, 42 L.R.A. 783, also involved a misleading and deceptive title. The title to the act indicatedprospective operation only, while the body of the act indicated also a retrospective operation. It was held by the court to violate section 45 of the Constitution.
In the case of First National Bank of Evergreen v. Hagood, Tax Assessor, 206 Ala. 308, 89 So. 497, the Supreme Court struck down an act of the Legislature as violative of section 45 of the Constitution where the title provided that the board of commissioners of Conecuh county were authorized to pay certain sums out of the general fund to the tax assessor; but the body of the act required the board of commissioners to pay said sums. The court said, in distinguishing between the title and the body of the act, as follows: "One would leave it to the discretion of the commissioners' court to pay the salary in question; the other would impose the duty to pay as a command or matter of compulsion — would leave no discretion. How, then, can it be said that the subject of this act is clearly expressed in the title? We think the necessary result is that in the frame of this act section 45 of the Constitution is not observed, and we have no discretion to overlook the requirement of the fundamental law; no right to mitigate the effect of its plain language."
In the case of Miller v. Jones, 80 Ala. 89, the Supreme Court struck down an act where the title provided for theregulation of the sale of, giving away or otherwise disposingof, spirituous liquors, while the body of the act prohibited the sale thereof. The court held: " 'Regulate' and 'prohibit' have different and distinct meanings, whether understood in their ordinary and common signification, or as defined by the courts in construing statutes. Power granted to a municipal corporation to grant licenses to retailers of liquors, and to regulate them, does not confer power to prohibit, either directly or by a prohibitory charge for a license."
The same thing was held in the cases of Morgan v. State,81 Ala. 72, 1 So. 472, and Yahn v. Merritt, 117 Ala. 485,23 So. 71.
In the case of State v. Davis, 130 Ala. 148, 30 So. 344, 89 Am. St. Rep. 23, the Supreme Court struck down an act of the Legislature where the title was "to prohibit the sale of spirituous, vinous, and malt liquors in Dallas county, outside the corporate limits and police jurisdiction," but the body of the act prohibited the giving away or otherwise disposing of spirituous, vinous, or malt liquors, intoxicating bitters, or beverages, or drinks or fruit preserved in alcohol. Two objections were made to the act: (1) The title prohibited the sale; the body of the act also prohibited the giving away. (2) The title of the act treated of spirituous, vinous, or malt liquors; the body of the act also treated of intoxicating bitters, beverages or drinks, or fruits preserved in alcohol.
In the case of State ex rel. Bassett v. Nelson, 210 Ala. 663,98 So. 715, the Supreme Court held that the Act of August 28, 1923 (Loc. Acts 1923, p. 121), entitled "An Act to alter or rearrange the boundaries of the City of Decatur," was unconstitutional and void under section 45 of the Constitution. There was not clearly expressed in the title part of the subject-matter of the act which disincorporated the city of Albany and consolidated the territory thereof with that of Decatur.
In the case of State ex rel. Coxwell v. Mims, 197 Ala. 356,72 So. 540, the Supreme Court held void an act where the title was to provide for the regulation and pay of state witnesses before the grand jury of Monroe county, while the body of the act also sought to regulate the fees of the sheriff and court clerks of Monroe county.
The case of Fuqua v. City of Mobile, 219 Ala. 1, 121 So. 696, involved an act entitled: "An act to alter and rearrange the boundary lines of the city of Mobile in the state of Alabama,so as to include within the corporate limits of said citycertain territory not included therein." The body of the act, however, excluded certain territory from the corporate limits of the city as they existed at the time of the adoption of the act. The court held that the subject of the act was not clearly expressed in the title.
I have cited these cases above because in each instance not only was the subject of the act not clearly expressed in the title, but the title itself was deceptive and misleading as to what was contained in the body of the act. From the foregoing decisions it appears that, where the title of an act indicates a distinct subject or thought, while the body of the act expresses a contrary thought, the act is void, as it is misleading and delusive to a member of the Legislature seeking to ascertain its contents from the title. Let us then consider the title to the Lapsley-Lusk Act. It is as follows: "An Act to fix, limit or regulate the salaries and compensation of certain officers and employees of the State or any department thereof * * * and to provide when the provisions of this Act shall become effective." It says, substantially, that "this act fixes, limits and regulates the salaries and compensation of certain officers or employees of the State or any Department thereof * * * and provides when the provisions thereof shall become effective." Assurance of the operation of the provisions of the act at the present or some future time is the thought permeating the title. It comprehends the imperative, not the subjunctive. *Page 537 It definitely says to a member of the Legislature examining the title that the salaries of certain officers and employees are hereby fixed, limited, or regulated (not contingently fixed, limited, or regulated), and that the provisions of the act are to become effective at the present or some future time. The title comprehends the absolute, not the contingent; the positive, not the conditional; the certain, not the uncertain. It neither expressly declares, nor faintly implies, that the salaries of those officers protected by sections 150 and 281, and similar provisions of the Constitution are to be fixed, limited, or regulated (that is reduced), only if a contingency or condition is met, viz., if the people of Alabama adopt the Sparks Amendment. While the time the act is to become effective is not stated, yet the title necessarily imports that atsome time the act will become effective. There is not the slightest indication that certain provisions of the act may never become effective, due to the contingency that the people might not adopt the Sparks, or a similar, amendment.
Remembering that: "Under our constitution, the title is regarded as an essential part of the law, having a specific object and office — to control the subject of the enactment, and to restrict it," Stein v. Leeper, 78 Ala. 517, 520, let us examine the title of the act to see what it imported to a member of the Legislature reading it. He would be informed, first, that the salaries or compensation of certain officers of the state, or any department thereof, were to be fixed, limited, or regulated at some time, either upon approval of the act, or in the future; second, that such officers were those whose salaries or compensation were susceptible of legislative fixing or regulation, that is, reduction during their terms of office; or, third, he would have been informed that, if it applied to officers whose salaries were prohibited from being reduced during their terms of office, the time when the provisions of the act relating to them would become effective, would be at the expiration of their terms of office; or, fourth, he may have been informed that it applied to both classes, but that, as to the latter class, the act would not operate until the expiration of their terms of office. His logical mental reactions from reading the title would be: It must either refer to those officers or employees whose salaries or compensation may be reduced at any time, or, if it does not refer to them, then it refers to those officers protected by sections 150 and 281 and similar sections of the Constitution, but as to them the time it is to take effect is at the expiration of their terms of office. If the title imported to him that the act did not apply to those officers protected by the Constitution, or that, if it did apply to them, it would not become effective until the expirations of their terms of office, he was misled and deceived as to the body of the act. I am, therefore, of the opinion that the whole title of the act is misleading and deceptive as to the contents of the body of the act, and that the subject is not clearly expressed in the title.
The last clause in the title of the Lapsley-Lusk Act is "and to provide when the provisions of this Act shall become effective." Are the words thus used susceptible of the meaning that the time at which some of the provisions are to become effective is dependent upon a condition precedent being complied with, namely, the adoption of the Sparks, or a similar, amendment by the people of Alabama. The word "when" means "at which time." 2 Bouv. Law Dict., p. 1227; State v. Donahoe, 5 Pennewill (Del.) 278, 63 A. 643, 646.
Substituting, therefore, these words in said clause, the title reads: "and to provide at which time the provisions of this Act shall become effective." Does this imply that the effective date of the act is dependent upon the contingency that the people of Alabama will vote for the Sparks Amendment?
"As a general rule the words of a statute are to be taken in their ordinary and popular sense, unless it plainly appears from the context or otherwise that they were used in a different sense." Mobile Dry Docks Co. et al. v. City of Mobile, 146 Ala. 208, 40 So. 205, 208, 3 L.R.A. (N.S.) 822, 9 Ann. Cas. 1229.
Granting that the word "when" may sometimes be a word of condition, yet there is nothing in the context of the title to suggest it was used in this sense. As to those officers and employees whose salaries might be presently reduced, the word undoubtedly refers to the time they are to be reduced. Why should a member of the Legislature be assumed to have imported to it an additional meaning, namely, as a word of condition. If we say that a member of the Legislature, without examining the body of the act, was put on notice that the word "when" meant both "time" and "condition," then we assume that he gave to the meaning of the word an unusual one and one not justified by the context of the title. Let us use another method of testing the meaning of the title. The Governor and the Supreme Court judges are included in the Lapsley-Lusk Act. Let us carve from the title and from the act all officers and employees of the state, or any department thereof, other than the Governor and the Supreme Court judges. A title of the character of the one used in the Lapsley-Lusk Act would read as follows: "An Act to fix, limit, or regulate the salaries and compensation of the Governor and the Supreme Court Judges of the State * * * and to provide when the provisions of this Act shall become effective." Could it be successfully contended that such a title would give notice to a member of the Legislature that the provisions of the act *Page 538 were to go into effect only upon the contingency that the Sparks Amendment was adopted by the people? Would the word "when" used in the title suggest time, or would it suggest the subjunctive or conditional? What would a member of the Legislature infer from reading such a title? He would know that the people of Alabama had guaranteed both to the Supreme Court judges, under section 150 of the Constitution, and to the Governor, under section 118, that their salaries would not be reduced during their terms of office. He would then assume that, as their salaries could not be reduced during their terms of office, the time at which the Act would become effective would be at the expiration of their terms of office. An analogous argument could be made as to all offices protected by sections 118, 150, and 281 of the Constitution. The appellant, however, contends that the time that an act is to become operative is no part of the subject of the act, within the meaning of section 45 of the Constitution, and cites the case of State ex rel. Crumpton v. Montgomery, 177 Ala. 212, 229,59 So. 294, 298, where Mr. Justice McClellan, speaking for the court, said: "The next insistence is that the Parks Bill contains three subjects, viz., the holding of an election, prohibition except in cities and towns, and deferring its going into effect to await future legislation. Manifestly, the mere postponement or fixing, in futuro, of the time of going into effect of an enactment is not, in any sense, a part of the subject of the act within section 45 of the Constitution."
"It is a maxim, not to be disregarded," said Chief Justice Marshall in the case of Cohens v. Virginia, 6 Wheat. 264, 399,5 L. Ed. 257, "that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated."
Granting that, ordinarily, the time that an act is to become operative is not a part of the subject, yet it is not true that the Legislature may not so use words designating time as to qualify or restrict the subject of the act. A title may be as broad as the Legislature desires, so long as it clearly expresses the subject, or it may be restricted and qualified, in which latter event the body of the act must conform to the title, and be confined within its limits. 25 Rawle C. L. p. 862, § 106; p. 864, § 108. Fuqua v. City of Mobile, 219 Ala. 1,121 So. 696; First National Bank v. Hagood, 206 Ala. 308,89 So. 497; Stein v. Leeper, 78 Ala. 517, 520.
If the title of the act in the Crumpton Case had stated that the act was to become effective four years after the date ofapproval, could it be successfully contended that section 17 of the Parks Act (Gen. Acts 1911, pp. 26, 31), mentioned in said case, postponing the operation of the act until legislation was enacted carrying it into effect, was valid? Again, if the title of the Lapsley-Lusk Act had used, in lieu of the words "and to provide when the provisions of this act shall become effective," the following clause, "and to provide that the provisions of this act shall become effective two years afterthe date of approval," could it be successfully contended that section 5 was clearly expressed in the title? Would the argument admit, in these two instances, that the rule stated in the Crumpton Case applied, and that, as time was no part of the subject, its inclusion in the title was mere surplusage and of no binding force?
Since the title to the Parks act, mentioned in the Crumpton Case, was silent as to the time it was to become effective, the court held that, as time was not a part of the subject, section 17 did not have to be reflected in the title. But it is a very different thing to say that a title may be silent upon a matter germane or cognate to the subject, and to say that this matter, if included in the title, may deceive and mislead without offending section 45.
In the case of Fuqua v. City of Mobile, supra, the title of the act was: "An act to alter and rearrange the boundary lines of the city of Mobile in the state of Alabama, so as to include within the corporate limits of said city certain territory notincluded therein." The body of the act also excluded certain territory theretofore included within the boundaries of the city of Mobile. The contention was made that the subject of the act was "to alter and rearrange the boundary lines of the City of Mobile," but Mr. Justice Gardner, in speaking to the point, said: "The title of the act is narrow and restricted. It is not an act to alter and rearrange the boundaries of Mobile, but one to so alter the boundaries as to embrace new territory, and by its language is expressly confined thereto. The language of the title is to alter the boundaries of Mobile, 'so as to include within the corporate limits' new territory; * * * we think it requires no argument to demonstrate that one reading such a title would not be led to suspect that the body of the act would be so far extended beyond the title as also to provide for an exclusion from the corporate limits a very large area then constituting a part thereof."
Undoubtedly, it was not necessary to set out in the title the words "so as to include within the corporate limits of said city certain territory not included therein," but, having *Page 539 so used the same, the subject was so qualified and restricted as to make the title of the act misleading and deceptive as to the body of the act.
Again, section 17 of the Parks bill merely postponed the effective date of the act, awaiting the enactment of new legislation. Section 17 could have been omitted, and nothing would have been taken away from the bill. It is true it would have had no present field of operation, but it would not have been void. In the case at bar, if we omit section 5 of the act, clearly the act would have been unconstitutional and void as to the present salaries of those officers protected by sections 150 and 281 and similar provisions of the Constitution.
Again, there is a clear distinction between the Crumpton Case and the one at bar. Usually, the time when an act is to become operative is not a part of the subject. The rule, however, is different when time is the essence of the subject. When time is the handmaid of contingency, and contingency is dependent for its life upon the undetermined will of the people, a different rule applies. When an act is dependent for its validity and operation upon the future obliteration or suspension of a constitutional provision, then time is necessarily an integral part of the subject with which the Legislature is dealing. For instance, the Legislature could not have passed an act reducing at the present time the salaries or compensation of those officers protected by sections 150 and 281 and similar provisions of the Constitution. The terms of office of such incumbents must expire by operation of time before their salaries can be diminished. The Lapsley-Lusk Act, in effect, for the intended purposes, seeks to accelerate the expiration of the terms of those officers protected by sections 150 and 281 and similar provisions of the Constitution. It seeks to anticipate time. Time is the essence of the act, the sine qua non to its validity. I am, therefore, of the opinion that the title to the act is deceptive and delusive as to the subject-matter of the act; and hence the same does not conform to section 45 of the Constitution.
The appellee insists that the Lapsley-Lusk Act contains more than one subject, thereby violating section 45 of the Constitution. With the construction that I have placed upon the title of the Lapsley-Lusk Act as a major premise, let us see if such is the case. What constitutes the subject of an act has been the source of much litigation. To determine if an act contains two subjects, it is always of aid to see if it deals with matters distinct and independent in their inherent nature and character, or with matters treated as separate and distinct subjects of legislation by present or past legislation or judicial decision.
"The enactment, it is apparent, by its title expresses two separate, distinct, independent subjects, made separate and distinct by legislation, judicial decision, and their inherent nature and character." Builders' Painters' Supply Co. v. Lucas Co., 119 Ala. 202, 209, 24 So. 416, 418.
See, also, Ex parte Gayles, 108 Ala. 514, 19 So. 12; Brown v. State, 115 Ala. 74, 22 So. 458; Dowling v. City of Troy,173 Ala. 468, 56 So. 118; Board of Rev. and Road Com'rs of Mobile County v. State, 200 Ala. 456, 76 So. 388; Black v. State,144 Ala. 92, 40 So. 611; State ex rel. Troy v. Smith, 187 Ala. 411,65 So. 942; Thompson v. Town of Luverne, 125 Ala. 366,29 So. 326.
The case of Commonwealth v. Humphrey, 288 Pa. 280,136 A. 213, 214, considers an act entitled: "An act to regulate the practice of the profession of engineering and of land surveying; creating a state board for the registration of professional engineers and land surveyors; defining its powers and duties; imposing certain duties upon the commonwealth and political subdivisions thereof in connection with public work; and providing penalties." It was held that the Legislature, itself, had treated engineers and surveyors as two separate subjects, and the court dismissed the defendant's contention that a land surveyor could well be regarded as a minor engineer, and that in several other instances learned professions had been divided into different branches by the Legislature and dealt with in the same bill. In answer to this the court said: "It is no answer to say, as defendants do, that a land surveyor can justifiably be regarded as a minor engineer, for the Legislature here designedly chose to treat him otherwise. Again, it is no answer to argue that in several other instances learned professions have been divided into different branches by the Legislature, and dealt with in a single bill, for, when these instances are examined, it will be found that in each of them the Legislature plainly treated a main subject as including minor branches," etc.
With this thought in mind, let us see if the body of the act in question has treated of subjects inherently distinct from and independent of each other, or made separate and distinct by a past or present course of legislation or judicial decision. It may be generally stated that public officers are divided into three classes:
1. Those officers created by the Constitution and protected by sections 118, 150, and 281 of the Constitution.
2. Those officers with fixed terms created by the Legislature, and also protected by section 281 of the Constitution. Franklin County v. Richardson, 202 Ala. 46,79 So. 384.
3. Those officers of boards or commissions of the state without fixed terms and whose salaries or compensation find no protection *Page 540 under Section 281 of the Constitution. State v. Sanders,187 Ala. 79, 65, So. 378, L.R.A. 1915A, 295; Harrington v. State ex rel. Van Hayes, 200 Ala. 480, 76 So. 422.
It may be accurately stated that the act in question divides the officers and employees mentioned above into two general classes, viz.:
(1) Those officers whose salaries and compensation may not be reduced during their terms of office. In this class salaries or compensation run as an incident to the office.
(2) Those officers and employees whose salaries or compensation may be so reduced. This class become entitled to their salaries or compensation as the result of employment, and they are not strictly public officers, though often so designated.
Do these two separate classes constitute separate, independent subjects made so by the present act and justified by the constitutional, legislative and judicial history of our state? Section 281 of the Constitution prohibits the diminishing or increasing of the salaries, fees, or compensations of any civil officer holding any civil office of profit under the state, or any county or municipality thereof, during the term for which he shall have been elected or appointed. The purpose of this provision of the Constitution has often been stated.
(1) "It was intended not only to protect the public against the evil of letting a public official use his official power and influence to augment his own salary, or the equally unjust action of an unfriendly power to cut down an official's salary because he was unpopular with the body whose duty it was to fix the salary, but to prevent also what would seem to have been implied in the spirit of the idea, that his salary should not be changed — that the matter of compensation was to remain substantially if not precisely as it was when the official was elected to the office. In this way only it was evidently thought could logrolling among officials and unjust intermeddling by unfriendly public bodies toward officials whose selection they did not approve, be prevented." James v. Barry, 138 Ky. 656, 664, 128 S.W. 1070, 1073.
(2) "It was designed to protect the individual officer against legislative oppression which might flow from party rancor, personal spleen, enmity, or grudge. These could well harass and cripple the officer by reducing his compensation during his service; while, on the other hand, party feeling, blood, or business relations might be combined in such pernicious activity in the form of strong and powerful lobbying as to sway the members of the Legislature and cause the bestowal of an unmerited increase. To obviate these conditions is the purpose of this wise constitutional provision." State v. Board of Com'rs of Sierra County, 29 N.M. 209, 214, 222 P. 654,655, 31 A.L.R. 1310.
(3) "It was to prevent persons while possessed of the prestige and influence of official power from using that power for their own advantage that the framers of our organic law ordained that salaries of public officers should not be increased during the terms of the persons holding such offices." Folk v. St. Louis, 250 Mo. 116, 135, 157 S.W. 71, 74. State v. Porter, 57 Mont. 343, 347, 188 P. 375.
See 46 C. J. p. 1021, note 22, § 254; State v. Sanders,187 Ala. 79, 65 So. 378, L.R.A. 1915A, 295.
The judiciary of our state, as a branch of the first class, in its relation to the matter before us, requires additional consideration. Section 42 of our Constitution, like the Constitution of the United States, in distributing the powers of government, creates three distinct and separate departments, the legislative, the executive, and the judicial. The theory of such separation was noted by Aristotle, and admired by Blackstone. 1 Blackstone Comment. 69. Montesquieu declared it was essential to civil liberty. Esprit de Lois, Book 2, chapt. 6. Mr. Madison, in The Federalist, No. 47, said: "The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the authority of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectively to the attention of mankind."
The Supreme Court of the United States, in a recent decision, commented upon the proven wisdom of such separation in the following language:
"Its object is basic and vital, Springer v. Government of Philippine Islands, 277 U.S. 189, 201, 48 S. Ct. 480,72 L. Ed. 845; namely, to preclude a commingling of these essentially different powers of government in the same hands. And this object is none the less apparent and controlling because there is to be found in the Constitution an occasional specific provision conferring upon a given department certain functions, which, by their nature, would otherwise fall within the general scope of the powers of another. Such exceptions serve rather to emphasize the generally inviolate character of the plan.
"If it be important thus to separate the several departments of government and restrict them to the exercise of their appointed powers, it follows, as a logical corollary, equally important, that each department should be kept completely independent of the others — independent not in the sense that they shall not co-operate to the common end of carrying into effect the purposes of the Constitution, but in the sense that the acts of each shall never be controlled by, or subjected, directly *Page 541 or indirectly, to, the coercive influence of either of the other departments. James Wilson, one of the framers of the Constitution and a justice of this court, in one of his law lectures said that the independence of each department required that its proceedings 'should be free from the remotest influence, direct or indirect, of either of the other two powers.' Andrews, the Works of James Wilson (1896), vol. 1, p. 367. And the importance of such independence was similarly recognized by Mr. Justice Story when he said that in reference to each other neither of the departments 'ought to possess, directly or indirectly, an overruling influence in the administration of their respective powers.' 1 Story on the Constitution (4th Ed.) § 530. To the same effect, The Federalist (Madison) No. 48. And see Massachusetts v. Mellon,262 U.S. 447, 488, 43 S. Ct. 597, 67 L. Ed. 1078."
O'Donoghue v. U.S., 289 U.S. 516, 53 S. Ct. 740, 743,77 L. Ed. 1356, decided May 29, 1933.
To make assurance doubly sure that the judiciary of our state should be independent of the remotest influence, direct or indirect, of the other two branches of our government, the framers of our Constitution inserted therein section 150 as a natural corollary to section 42. This section provides as follows: "Sec. 150. The justices of the supreme court, chancellors, and the judges of the circuit courts and other courts of record, except probate courts, shall, at stated times, receive for their services a compensation which shall not be diminished during their official terms; they shall receive no fees or perquisites, nor hold any office, except judicial offices, of profit or trust under this state or the United States, or any other government, during the term for which they have been elected or appointed."
The logical relation of similar provisions in the Federal Constitution, the obvious necessity for their creation, and the political and ethical philosophy underlying them, also find a most admirable treatment by the United States Supreme Court in the following words, viz.:
"The anxiety of the framers of the Constitution to preserve the independence especially of the judicial department is manifested by the provision now under review, forbidding the diminution of the compensation of the judges of courts exercising the judicial power of the United States. This requirement was foreshadowed, and its vital character attested, by the Declaration of Independence, which, among the injuries and usurpations recited against the King of Great Britain, declared that he had 'made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.'
"In framing the Constitution, therefore, the power to diminish the compensation of the federal judges was explicitly denied, in order, inter alia, that their judgment or action might never be swayed in the slightest degree by the temptation to cultivate the favor or avoid the displeasure of that department which, as master of the purse, would otherwise hold the power to reduce their means of support. The high importance of the provision, as the contemporary history shows, was definitely pointed out by the leading statesmen of the time. Thus, in The Federalist, No. 78, Hamilton said: 'The complete independence of the courts of justice is peculiarly essential in a limited Constitution.' And in No. 79: 'Next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. * * * In the general course of human nature, a power over a man's subsistence amounts to a power over his will.' * * *
"Chief Justice Marshall, in the course of the debates of the Virginia State Convention of 1829-1830 (pp. 616, 619), used the following strong and frequently quoted language:
" 'The Judicial Department comes home in its effects to every man's fireside; it passes on his property, his reputation, his life, his all. Is it not, to the last degree important, that he should be rendered perfectly and completely independent, with nothing to influence or control him but God and his conscience? * * * I have always thought, from my earliest youth till now, that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent Judiciary.'
"In a very early period of our history, it was said, in words as true to-day as they were then, that 'if they (the people) value and wish to preserve their Constitution, they ought never to surrender the independence of their judges.' Rawle on the Constitution (2d Ed.) 281."
O'Donoghue v. U.S., 289 U.S. 516, 53 S. Ct. 740, 743,77 L. Ed. 1356, decided May 29, 1933.
While the limitation upon the power of the Legislature to diminish the salary, compensation, or fees of those officers mentioned in sections 118 and 281 of the Constitution is the same as that fixed by section 150, yet the latter is more pronounced since its springs from the greater necessity. For the purposes of this opinion, and since the Legislature in the Lapsley-Lusk Act placed the officers protected by these three provisions in the same class, we will treat them as a unit. What then do we find in the Lapsley-Lusk Act? The Legislature, dealing with those officers protected by sections 150, 118, and 281, separately from those officers and employees not so protected. As to the latter, the act is to become effective on the first day of the month after the approval of the act; as to the former, the act is to become effective only after a constitutional amendment, removing or suspending *Page 542 sections 150, 118, and 281 and similar provisions, is adopted by the people. The former class is independent of the latter class because the Legislature contemplated by the act that salaries or compensation of the latter are to be reduced on a day long prior to the date of the election on the Sparks Amendment, and regardless of whether the people adopted said amendment, or a similar one. What would have been the result had the Sparks Amendment lost in the election? The salaries of the former class would not have been affected, and as to them the Lapsley-Lusk Act would have remained dormant, awaiting the adoption of a similar amendment by the people. But what of those officers and employees not protected by sections 150 and 281 and similar provisions? The answer is that their salaries or compensation would continue in their diminished state, uncontrolled or undisturbed by the failure of the people to adopt the Sparks Amendment. The Legislature so intended. The result is, therefore, that two subjects, distinct from and independent of each other, one with the cloak of the Constitution thrown about it, the other naked and without protection, have been dealt with by the Legislature in the same act. Those elements that compose and protect one are lacking in the other. The Legislature recognizes the difference in their substance, and the act treats them differently in its execution; the one is to live, although the other may die in birth. They are two distinct and independent subjects, especially made so by the method of treatment accorded them in the Lapsley-Lusk Act. Neither is germane nor cognate to the other, nor a complement thereof; nor is one germane or cognate to the title. Eliminate either from the act and the other remains a distinct and complete subject of legislative enactment.
My position is identical to that of Mr. Justice Stone in Ballentyne v. Wickersham, 75 Ala. 541, when he said: "We do not affirm, in what is said above, that a title could not be framed, general enough and broad enough to embrace the whole scope of the act. — Rogers v. Torbut, 58 Ala. 523. All we decide is, that the legislature chose to express a minor subject, which was not broad enough to cover the entire contents of the act, and hence, they felt called upon to express two minor subjects."
For instance, the Bonner Act (Gen. Acts 1932 [Ex. Sess.] p. 300) most probably meets the requirements of section 45, but it is materially different from the act in question.
The suggestion is further made that the Sparks Amendment (Gen. Acts 1933 [Ex. Sess.] p. 46), by its language, not only relieves the Lapsley-Lusk Act from the inhibitions of sections 118, 150, and 281 of the Constitution, but that it likewise cures any infirmities resulting from the act's failure to comply with section 45 of the Constitution. The language referred to in the Sparks Amendment is as follows: "Any other Act of the Legislature adopted prior to October 1, 1935 decreasing or diminishing the salary, fees or compensation of any such officer or officers, during the term for which such officer or officers may have been elected or appointed, shall be effective from and after the first day of the month next succeeding the date of the ratification and adoption of this amendment, or from and after the adoption by the Legislature of any such Act decreasing or diminishing the salary, fees or compensation of such officer or officers." Section 1.
To this contention I cannot agree. The word "adopted" necessarily means "validly adopted," and if the Lapsley-Lusk Act was not validly adopted, of course the Sparks Amendment would have no application. If appellants' contention be true, the Legislature could meet in another session before October 1, 1935, pass a similar act violative of sections 45, 61, and 64 of the Constitution and other procedural constitutional provisions, and rest upon the assumption that the Sparks Amendment validated the statute. The language of the Sparks Amendment, by its very terms, leads one to the irresistible conclusion that such was not its intention, but that it was intended to relieve against only sections 118, 150, and 281, and similar provisions of the Constitution. The first sentence of the amendment emphasizes the intent and purpose of the amendment as follows: "All provisions of the Constitution which prohibit or restrict the Legislature from decreasing or diminishing the salary, fees or compensation of any executive, legislative or judicial officer or of any public officer or of any officer holding any civil office of profit under this State or any County or Municipality thereof, whether elected or appointed, during the term for which he shall have been elected or appointed are hereby suspended until October 1, 1935." Section 1. This language indicates clearly that the amendment was not intended to relieve such statutes from compliance with other provisions of the Constitution, such as sections 45, 61, and 64.
It is my opinion, therefore, that the judgment of the learned court below should be affirmed.
I therefore respectfully dissent. *Page 543