Opinion
1 Div. 976.
May 24, 1917. Rehearing Denied June 30, 1917.
Appeal from Law and Equity Court, Mobile County; Saffold Berney, Judge.
Gordon Edington, of Mobile, for appellants. Harry T. Smith Caffey, of Mobile, and Allen, Fisk Townsend, of Birmingham, for appellee.
The court is of the opinion that so much of section 1 of the above act as may fix a charge upon the counties of 50 cents per day, upon the sentence of the derelict, to a probation officer to be expended upon the direction of the judge, and whether the county did or did not collect the same upon the said sentence, is foreign to the title of the said act. Fastening this liability upon the counties after the sentence, and regardless of what it may collect for the hire of the convict, is not germane or cognate to the general subject dealt with in the title of the act, and the inclusion of same in the body of said act was prohibitive of section 45 of the Constitution. Whether or not the elimination of this objectionable part of the section will affect the balance of same, or the remainder of the act, or whether or not the rest of the act is subject to the other constitutional objections, we need not decide, as the elimination therefrom of the objectionable part of section 1, as above pointed out, is decisive of the present case. The trial court erred in awarding the petitioner the final writ of mandamus, and the judgment is reversed, and one is here rendered denying the writ and dismissing the petition.
Reversed and rendered.
ANDERSON, C. J., and McCLELLAN, MAYFIELD, and SAYRE, JJ., concur.
I am unable to agree with the conclusion of the majority, and will here briefly state my views:
By this proceeding the constitutional validity of the act of 1915 (Gen. Acts 1915, p. 560), the caption and the first section of which appear in the foregoing statement of the case, is assailed. It is first insisted that the portion of section 1 of said act which provides for the payment out of the general funds of the county the sum of 50 cents to the probation officer for each day a prisoner serves under a sentence of hard labor for the county for a violation of this statute is unconstitutional, under section 45, Const. 1901, in that no such requirement or duty is expressed in the title of the act, nor is it embraced in, or cognate or germane to, the matters expressed therein. That portion of the caption of the act considered here pertinent is as follows:
"An act to protect women and children from desertion and non-support by husbands and parents."
The contention of counsel for appellant is that the word "protect," as used in said caption, means "to guard, shield, preserve," and the logical result of their contention is that the words "protect from" are used in the sense of "prevent." While it is true that the punishment of the offending husband and father for the abandonment of his family may, of course, have a tendency to lessen such offense, yet it must be presumed that the Legislature well knew that such punishment was no adequate protection in a large number of cases to the women and children thus deserted, and therefore without means of support. Looking to the body of the act, which is entirely proper upon consideration of this question (State ex rel. Porter v. Crook, 126 Ala. 600, 28 So. 745; Jordan v. McClure L. Co., 170 Ala. 289, 54 So. 415), we note that financial aid to the wife and children appears to be one of the primary objects of the statute. Section 3 provides for financial support to them pendente lite, and section 4 deals entirely with the subject of support for the wife and children, while section 5 provides that in case of forfeiture of recognizance the sum recovered thereon shall be paid, in the discretion of the court, in whole or in part, to defendant's wife, or to the guardian or custodian of the children, or to an organization, probation officer, or individual approved by the judge, for the use of the wife and children.
While the wife and children may be said to be protected by the punishment of the offending husband and father, in the sense that it may tend to prevent a repetition of the offense, yet in its broadest scope they are still better protected by being shielded from the results of such evil. Clearly the most practical way to provide for such protection is by supplying financial aid to the abandoned wife and children. The word "protect," therefore, should not be given a narrow meaning, but should be interpreted in a broad and comprehensive manner, so as to embrace every kind of protection that may be afforded. As was aptly said by the Supreme Court of Michigan in People v. Stickle, 156 Mich. 557, 121 N.W. 497:
"There is an apparent, and we think a necessary, connection between preventing abandonment of families by the husband and father without providing for them and the enforced use of his earnings after his conviction for their support."
It has been repeatedly held by this court that much must be left to the discretion of the Legislature in framing titles to acts, providing the same are not deceptive or misleading; that the title may be very general, and, when the subject is expressed in general terms, everything which is necessary to make a complete enactment in regard to it, or which results as a complement of the thought contained in the general expression, is included in and authorized by it. It is a fundamental principle that every legislative enactment is presumably constitutional and valid, and that he who assails it assumes the obligation to demonstrate beyond a reasonable doubt that it violates the fundamental law. As said by the court in Lovejoy v. City of Montgomery, 180 Ala. 473, 61 So. 597:
"It is a solemn thing * * * to strike down a statute. A statute is, at least presumably, an expression by the people of their will, through their representatives selected by them for the purpose of making their laws."
Without entering into a further discussion of the question, I am fully persuaded that the portion of section 1 of said act here in question is not subject to the constitutional objection here interposed. In support of this conclusion I cite McNiell v. Hewitt, 184 Ala. 101, 63 So. 976; State ex rel. Atty. Gen v. L. N. R. R. Co., 158 Ala. 208, 48 So. 391; City Council of Montgomery v. Moore, 140 Ala. 638, 37 So. 291; Glasscock v. State, 159 Ala. 90, 48 So. 700; State ex rel. Troy v. Smith, 187 Ala. 411, 65 So. 942; Clark v. State, 4 Ala. App. 105, 58 So. 682; People v. Stickle, supra; Clark Thread Co. v. Bd. of Freeholders of Hudson County, 54 N.J. Law, 265, 23 A. 820; People v. Nellis, 249 Ill. 12, 94 N.E. 165.
I therefore respectfully dissent from the holding of the majority.
SOMERVILLE and THOMAS, JJ., concur in the foregoing dissenting opinion.