
    Griffin v. Drennen, et al.
    
    
      Bill by Tax-payer to 'Require Mayor to Refund Part of Balary in Excess of Twenty-five Hundred Dollars.
    
    (Decided Jan. 30, 1906.
    
      So. Rep. 1016.)
    1. Statutes; Title; Subject of Title; Statement. — The act (General Acte 1903, p. 108.) entitled an “act to fix and provide for the salaries of Mayors in cities in this State,” declaring that the mayors of all cities having a population of moré than 35,000 people according to the last federal census, shall receive a salary of $2,500.00 per annum, is not unconstitutional on the ground' that its subject is not staled in its title, as required by Sec. 45, constitution of 1901.
    2. Same; Local Acts; Notice. — The act of 1903, p. 108 is not a local act, as it operates upon all cities 'Of a certain class in the state, or that may attain to that class, hut is a general act, and it is not necessary to its validity that notice of intention to introduce it he given.
    ♦Rehearing granted April 3rd, 1906.
    Appeal from Birmingham City Court.
    Heard before lion. O. W. Ferguson.
    The bill was filed by appellant as a. citizen and taxpayer of the city of Birmingham, on behalf of himself and other tax-payers, against the mayor of B inning'll am, and the mayor and aldermen of the city, for a mandatory injunction requiring the said mayor to repay to' the city treasury the excess in salary collected by him from May tot, 1903, to Dec. 31 et, 1901. The hill alleges the passage of ihe act construed in the opinion, .sets /up that Birmingham is in the (lass of cities-mentioned in said act, and that the mayor, Drennen, was not entitled to collect from said city treasury an amount greater than $2,500.00 per annum monthly. That notwithstanding the act in question, said Drennen has continued to] collect from the city treasury the sum of $3,600.00; that the city council, or hoard of aldermen had taken no steps to have .such excess refunded to the city.
    
      Tlie defense set up by way of demurrer and motion to' dismiss tlie bill for want of equity, was that the act relied on was unconstitutional, in not stating its snhject clearly and in that it was a local act and no notice of its intended introduction ivas published as. required by the constitution of 1901. Drennen, personally and as the mayor of Birmingham, and those constituting the board of aldermen were made parties respondent.
    The chancellor sustained the demurrers and granted the motion to dismiss for want of equity, and from this decree this appeal is prosecuted.
    Gabaniss & Wkakeey, for appellant. —
    The case turns on the question whether the act of Feh. 26th, 1903, is a general or local law. The appellant contends that the act makes a proper classification of the cities of the state; that it relates to the two cities as a class, and not to the particular cities of a elms, and that it will include others as they reach the designated population. — Matter of Church, 92 N. Y. 1; Matter of New York Elevated R. R. Co., TO N. Y. 328.
    The classification adopted by the act is proper and legitimáte and said act is general and not special or local legislation, although hut two cities were embraced by the legislation at the time of the passage of the act. — State ex rel ('oringlon v. Thompson, 142 Ala. 98; Givens v. Hillsborough County, 35 So. Rep. 88; Ex parte Wells, 2, Fla. 28Ó; Bloxham v. R. R. Co., 35 Fla. 625, 17 So. Rep. 902; Matter of Church, 72 N. Y. 1; People v. Squire, 107 N. Y. 1.
    A classification by population is proper, and the act in question not only applies to cities embraced within the term at the passage thereof, hut will embrace others, as they reach the population named, as shown by any future census.— (“last U. S. census”); Campbell v. Indianapolis, 155 Ind. 186, 57 N. E. 920; (“last state or national census”) ; Johnson v. Milwaukee, 88 Wis. 383, 60 N. W. 270. See also Wheeler v. Philadelphia, 77 Pa. St. 338 ;Boyd v. Milwaukee, 92 Wis. 456; State v. Board of Trustees, 98 Wis. 954; State v. Speed, 81 S. W. 1260; 183 Mo. 186; Ex parte Loving, 77 S. W. 508; Lynch v. Murphy, 119 Mo. 168, 24 S. W: 774; R. R. Go. v: Tere Haute, (Ind.) 67 N. E. 686. ........ '
    Demand upon the conncil was not necessary; snch' demand would have been futile, because the council is now contending that the act is invalid,' and furthermore a majority of the council participated in the wrongful act of paying- but the money and ought hot to be permitted to control the litigation. — Power Go-, v. La-hey, 121 Ala. 131. and cases'cited. ' ■
    'The cases' cited by appellee, 14 L. R. A. 725' and 2 L. R. A. 577 have no application.
    ON REHEARING.
    The i‘ea.1 subject of the act being salaries of mayors was clearly expressed in -the title, and the application of the general subject was. a matter of detail. If the title of an act is single and ¡directs the mind to the subject of the law in a way calculated to direct the attention truly to the matter which-is proposed to he legislated uponj the objection of the constitutional provision, is satisfied. The court has fallen into error by confusing the object or purpose, of the act with its subject. — Mobile Transportation■ -Go. v. Gity of Mobile, 128 Ala-. 335; State v. Sayre., 118 Ala. 1, 36; -.State v. Rogers, 107 Ala. 444; State v. Street, 117 Ala. -203 ; Sheppard v. Dowling, 127-Ala. 1; Ex -parte Pollard, 40 Ala. 77; Alleghany Gount'g Home’s Appeal,- 77 Pa. St. 77; In re Burris,. 66 Mo. 442; State v. Gunn, (.Minn,) ’100N. W. 97; Fahey-v-. .State, 27 Tex. Appeals,. 146-, 11 Am. St. Rep.. 182. ■
    E. D. Smith, for appellee. —
    But for the act set out in the hill of ¡complaint -the action of .the hoard of mayor and aldermen of Birmingham in fixing .the ¡mayor’s salary at 1300.00 a month is'authorized;.and it ¡is still authorized if the said Act be void for any- reason. — -Perryman et at V: Gity -of -Greenville, 51 Ala. 507-; Lindsay v. Mayor A G., 16 So.’Rep. 545yLord'v. Mobile, 21-S. Rep/38©; Arndt v: 'Gúllman, 31 S: Rep. 438; -Charter of. Gity of-Birmingham, Sec. 21 (acts‘1898-9, p. 1391.; Spalding v. W. S. F. '& CL Asts’ny 87 Oal. 40; Paulseñ v. Portland,- (U. S.-Rep.) 3-7 U.-Ed;, 641Audito-r Gen:v. Hoffman,-'93-N; W.-259; ■Gas L.-'& G\ Go-. v. Hew Albany¿ 63 N. E. 469.- ' ■ ‘ ■
    
      The act relied upon by appellant is a local law, void both in’ substance and on account of the manner of its passage. — Benny v.- State, etc., 31 L. B. A. 762; State, etc. v. Cunningham, 15 L. B. A. 561; Constitution of Ala. Sec. 110; Sec. 147; Wallace v. Board of Rev. of Jeff. Co., 140 Ala. 491; Edmunds v. Herbrandson, 14 L: B.-A. 725; Appeal of P. B. Ayers et al (Penn'); 2 L. B. A. 577; Constitution of'Alabama, Sec. 104, Par. 18; Little v State, 35 So. Bep.' 134; Constitution/ of Alabama, Sec. 106. '
    Appellant’s, hill ■ of complaint was ' prématurely brought. — 2 Bill. Mum. Corp. (4 Ed.), p. 915; Montgomery L. & P. Co. v. La,hey et al, 121 Ala.-131: . ■ '
   ANDEBSON, J.

This appeal involves the ■ constitutionality of Act 1903, p. 108, entitled “An Act'to-fix-and provide for the salaries of mayors in cities in the state of Alabama.” ■ • ■

Upon the former consideration- of this case we concluded that the act in question was violative of'section 45 of the constitution, upon the'idea that the title was deceptive and misleading, in that it did not clearly express the subject- o-f the l-a-w a.s it was enacted. The title, however, provided for legislation'relating -to cities in Alabama, and was sufficient to inform the public) and the' inhabitants of each-city in the State, that the passage of the law would he attempted with-reference to the-salaries of mayors, and was' germane to- the subject and sufficiently comprehensive of the particulars of the body of the act. “When the subject may he comprehended, in the title the act must he upheld.” — Mobile Co. v. City of Mobile, 128 Ala. 335, 30 South. 645, 64 L. R. A. 333, 86 Am. St. Rep. 143 ; Adler v. State, 55 Ala. 21 ; Ballentyne v. Wickersham, 75 Ala. 536 ; 23 Am. & Ency. Law, 229, 235 ; State v. Sayre, 118 Ala. 1, 24 South. 89 ; State v. Rogers, 107 Ala. 444, 19 South 909, 32 L. R. A. 520 ; Allegany Co. Case, 77 Pa. 77 ; State v. Street, 117 Ala. 203, 23 South. 807 ; Sheppard. v. Dowling, 127 Ala. 1, 28 South. 791, 85 Am. St. Rep. 68.

.The issue involved in the court below ivas whether or not the act m question ..ivas repugnant to.,the ,.Gonstitution, in tliat no notice was given of the intended passage of same as .required by section 106 of the constitution of 1901. In determining this question we must consider whether this is a general or Ideal law. It is a fundamental rule for the constniction of statutes that they, will be considered to have a prospective operation, unless a legislative intent to. the contrary is expressed, or is necessarily to he implied from the language used.— Greenwood v. Trigg & Dobbs, 143 Ala. 617, 39 South. 361 ; Lindsey’s Case, 120 Ala. 156 ; 26 Am. & Eng. Ency. Law, 693. We do. not think the act in question refers to the census of 1900, hut to the last census previous to the fixing of the salary, and is not, therefore, confined in its operation to cities with a population of 35,000 or over at the time of its passage. If the law applies to all cities in the state, although hut two of them may be presently affected thereby, it is a general law, if all other cities should come within the provision thereof upon attaining the requisite size. — State v. Thompson, 142 Ala. 98, 38 South. 679 ; Wheeler v. Philadelphia, 77 Pa. 338 ; Van Riper v. Parsons, 42 N. J. Law, 51 ; Matter of Church, 92 N. Y. 1.

The judge of the city court erred in sustaining the motion to dismiss and the demurrers to- the bill, and the rehearing is granted, the decree of the city court is reversed, and one is here .rendered overruling the motion and demurrera and remanding the cause.

Reversed, rendered, and' remanded.

Haralson, Tyson, Dowdell, Simpson, and Denson, JJ., concur.  