The Birmingham age-herald., 1909-12-17

incorporated Lerrifory were merged Into
 the enlarged city of Birmingham. Sec tions 20 to 9 Of the act approved Au- gust 13. 1907 (Act 1907. p. 7so). commonly known as the municipal code law. pro- vide for the consolidation of two or more municipalities lying contiguous to each
 other. Section 28 of the municipal code
 law provides a means for the extension
 of corporate limits to include new terri
 tory. Tho territory so included must be
 contiguous to the boundary of the city at
 some point but may not embrace any ter
 ritory within the corporate limits Of an-
 other municipality. An act approved Au-
 gust 1s 1907 (Act 1907, D. eoD, contained
 provisions similar to those of section 23
 of the municipal code law. An act of Au-
 gust 15, 1907 Acts 1907, ?. 6es), also pro-
 vided for the annexation and merger of
 any city or town Into a contiguous city
 or town. Section 104 of the constitution
 denies to the legislature the right to pass
 any special, private or local law amend
 ing, confirming or extending the charter
 of any private or municipal corporation;
 but in subdivision IS Of that section 1t was
 provided that this should not prohibit
 the legislature from altering or rearrang-
 ing the boundaries of city, town or yil-
 lage. The language of section 105 of the
 constitution is that .'No special, private or
 local law, except law fixing the time of
 holding courts, shall be enacted in any
 case which is provided for by general
 law" It is clear enough that nothing
 contained in section 1o4 denies to the leg
 islature the power to pass the act In
 question. Nor can section 105 be so in-
 terpreted. If 1t should be conceded, con
 trary to our present impression, that
 the power of legislation by special or local
 laws in respect to the alteration or re-
 arrangement of municipal boundaries is
 excepted and reserved by the proviso of
 subsection IS of section 104 only in the
 event there is no general law on the sub
 ject, that concession would not determine this case, for here the legislatuare has embodied in one comprehensive scheme the inclusion, not only of contiguous ter ritory and municipalities, but of munich palities not contiguous at the time Of
 the passage of the act. True, under the general law the same result might have been obtained by tedious and embar-
 rassing process Of repeated additions to
 the territory Of the absorbing city, each
 in turn, and so ultimately the scheme as
 an entirety, being dependent upon the
 vote of the electors resident in the mu-
 nicipality or unincorporated territory an-
 nexed from time to time But the legis- lature had the right to weigh the ad- vantages of the scheme as a whole and enact law accordingly to accomplish the desired end at one stroke. Under no general law could the same considera- tions be submitted to the same decorate or the same result reached in the same way. We do not deem 1t necessary to en- ter upon a detailed statement of dis functions which may be taken between the case at bar and the cases of town or McGregor vs. Baylies, 19 Iowa, 43, and in re extension of boundaries Of city of Denver, 32 Pac Rep. 615. In Colorado judges of the highest court are required to give opinions on request of the execu- tive or the legislature. But the judicial quality of such opinions has been oues- toned.
 In Rhode Island there is a similar requirement. Said Ames, c. J., in Tay- Tor vs. Place, 4 R. T.. 324-3s2. ''The ad- vice, or opinion. given by the judges Of this court, when requested, to the governor or to either house of the gen. eral assembly, under the third section of the 10th article of the constitution, Is not decision of this court, and given, as 1t must be, without the aid which the court derives. in adversary cases, from able and experienced coun- sel, thought it may afford much light, from the reasonings or research dis- played in 1t, can have no weight as a precedent" Neither of the cited cases involved constitutional provisions sim liar to those of this state to which reference has been made The consti- tuition of Iowa contained a provision
 that "in all cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the state." It also pro- hibited the incorporation of cities and towns by special or local laws (he1d to prohibit the passing of any act to amend a municipal charter) without exception in favor of acts altering or rearranging boundaries. So much of the constitution of Iowa as we have quoted Is in effect the same as sec tion "A of article of the Alabama constitution of 1875 under which 1t was frequently held in this state that the courts would not review the legis- latiye judgment that a matter of legis- lation could not be provided for by general law. The departure worked by section 105 of the constitution of 1901 has significance. The inhibition now Is against special. private or local laws in any case which is provided for by general law, of which the courts shall judge. Formerly the inquiry was whether the legislature could provide for partiular case by general law; now the question is whether it has so provided. We need not be understocl as impairing the authority of city council of Montgomery vs Reese, 1A9 Ala, 1S8. The court there said that 1t
 could not perceive that the framers
 of the constitution intended the pro-
 hibition to operate only against special,
 local or private laws which are In
 ipsis verbis of the general law. The
 effect of the ruling was that the en-
 aotment of q general law authorizing
 municipal corporations to issue bonds
 to run not exceeding 30 years, while
 permitted to stand upon the statute books, operated as constitutional ih- hibition. against any act permitting any particular municipality to issue bonds to run exceeding 30 years Appellees argument applies that decision to the case in hand as follows: The general statute permitting the alternation or encouragement of municipal boun- daries by the acquisition of contiguous territory only, while it stands, must operate as a constitutional inhibition against any act consolidating non- continuous municipalities if, at the same time. and in order to preserve the
 unity and contfguity of the consolidated municipality, as perhaps is necessary
 to the validity of the act (city of Dem yer ys. Coulehan, 20 Col, 471(, inter- ventng etrritory, contiguous to both of the constituent municipalities. Is in- cluded in the act of consolidation. The subject of legislation in the general law Is the alteration or encouragement of boundaries as affecting contiguous municipalities and unincorporated ter l ritory. The subject matter dealt with | In the special act is the alteration or
 encouragement of boundaries as affect fv,a fx,<~ 4~s.~