The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1908-12-31
Smyer Thinks Extra Session
Could Accomplish Nothing
THElCONSTlTUTION FORBlDS
Could Not Pass King Bill Because
General Law On Subject Is Al
ready Incorporated In
New Code.


bill unconstitutional and as the SUI
preme court will doubtless affirm Judge
Lanes decision, If we want Greater
Birmingham, we should coolly and
calmly look over the situation. take
. our bearings and act promptly, with
out frittering away any more time.
Some are looking to an extra session
! of the legislature and hope through this
extra session to procure Greater Biz
| mingham, through local act similar
to the King bill.
Can the Legislature, under the con-
stitution, enact local law similar to
j the King bill which the courts will
! hold valid and constitutional?
If it cannot then there Is no need
. for an extra session for this purpose.
II 1t cannot, then 1t is unwise to pro-
! Greater Birmingham through means of
. the legislature.
There are reasons that lead one to
! the conclusion that the legislature has
no power to enact a valid law similar
to the King bill to extend the corporate
limits of Birmingham.
We now have (enacted since the King
bilD general laws lin the municipal
code laws and other general laws)
which provide means for municipality
to extend its corporate limits over ter
ritory not In any other municipality;
also means providing for the consoli-
| dation and merger of one municipality
into another
BY section 1O4 of the constitution 1t
is provided
"The Legislature shall not pass a
special, private or local law In any of
the following cases (naming a number
of cases) GS) amending, confirming or
extending the charter of any private
or municipal corporation, or renting
the forfeiture thereof; provided this
shall not prohibit the Legislature from
altering, or re-arranging the boundary
of the city, town or village"
By section los of the constitution it
is provided:
mo special, private or local law = y
shall be enacted in any case which is
provided for by general law =
and the courts and not the legislature
| shall judge as to whether the matter
of said law is provided for by general
laws nor shall the legislature
indirectly enact any such special, pri-
| vate or local law by the partial re-
peal of general law"
1t will be seen that section 1o4 of
the constitution prohibits the legisla-
ture from passing a local law In the
though there may be no general laws
on the subject, the exception being
that, This shall not prohibit the leg
islature from altering or re-arranging
the boundary of the city, town or VII
lagep
But in this connection section 1O5 of
the constitution expressly prohibits a
local law in any case which is pro-
vided for by general laws.
Taking the two sections of the con-
stitution together, if there is a general
law which provides means for alter
ing or re-arranging the boundary of a
city, town or village" then there can
be no valid local law enacted on that
ubject.
Under section los of the constitution
no valid local law can be enacted on
any subject where there is a general
law on that subject.
IL you concede that the exception in
subdivision IS of section 104 of the
constitution authorized under the guise
of altering or re-arranging the boun-
Diary lines of city" one municipality
to be merged into another, you are
confronted with the proposition that it
cannot be done by local law, If the
general law provides for the merger of
one city or town into another.
Section los of the constitution has
been construed by the supreme court
of the state, in the case of City Coun-
Gil of Montgomery VS.. Reese, 149 Ala.
1873.
In this case the legislature enacted
a general law, ito provide for the set
tlement, adjustment and refunding of
corporations"
Subsequently the legislature enacted
a local law authorizing the city OF
Montgomery to refund its bonded in
ebtedness.
The supreme court, in passing on the
question, after quoting section los of
the constitution, says:
ut Is apparent that the subject mat
ter of the two acts Is substantially
the same; and 1t is equally apparent
that the inhibition contained in the
section of the constitution quoted was
violated by the enactment of the special
or local law. 1t is of no consequence
that the special or local act contains
matters germane to the subject ex-
pressed in its title, to authorize the
city council of Montgomery to refund
the bonded Indebtedness of said city,
etc., which are not in the general law;
for obviously IL the insertion of such
matters in special local or private
law would obviate the constitutional
prohibition, then the prohibition could
be easily circumvented and practically
rendered nugatory. 1t is not perceiv-
able that the trainers of the constitu-
ton intended the prohibition to operate
only against special local or private
laws which are in ipsis verbs of the
general law 1t follows, therefore, that
we are constrained to hold the act of
September 26, 1903. (the local act) to
be unconstitutional and void"
Any local act that could be enacted
by the Legislature looking to the ex-