Summary
In Goodwin v. State Board of Administration, 212 Ala. 453, 102 So. 718 (1925), the plaintiff alleged that an act was not legally passed because it violated a rule of the House of Representatives.
Summary of this case from Pettway v. Marsh (Ex parte Marsh)Opinion
3 Div. 682.
January 15, 1925. Rehearing Denied January 28, 1925.
Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.
Ball Beckwith, of Montgomery, for appellants.
This is not a suit against the state. 36 Cyc. 917; 32 Cyc. 240; Lehmann v. State Board, 208 Ala. 187, 94 So. 94. The act is void for noncompliance with rule 18 of the House. Bales v. State, 63 Ala. 30; 36 Cyc. 958; Montgomery Beer Co. v. Gaston, 126 Ala. 425, 28 So. 497, 51 L.R.A. 396, 85 Am. St. Rep. 42; State v. Wilson, 123 Ala. 259, 26 So. 482, 45 L.R.A. 772; Ex parte Howard-Harrison Co., 119 Ala. 484, 24 So. 516, 72 Am. St. Rep. 928; Moody v. State, 48 Ala. 115, 17 Am. Rep. 28; State v. Buckley, 54 Ala. 612; Moog v. Randolph, 77 Ala. 597. Sections 2, 15, and 16 are not germane to the subject expressed in the title, and the act is void. Const. 1901, § 45; State v. Sayre, 118 Ala. 1, 24 So. 89; Lindsay v. U.S. Sav. Loan Ass'n, 120 Ala. 172, 24 So. 171, 42 L.R.A. 783; Rice v. Westcott, 108 Ala. 353, 18 So. 844; Sheffield Oil Co. v. Pool, 169 Ala. 422, 53 So. 1027; L. N. v. Grant, 153 Ala. 112, 45 So. 226; Ex parte Reynolds, 87 Ala. 138, 6 So. 335. Respondents had no right to make contracts with mutual companies, and had no discretion in the premises. The injunction should be granted. Code 1923, §§ 51, 8426, 8436, 8554; Acts 1923, p. 73, § 20; Acts 1919, p. 1121, § 6; Herring v. Griffin, 211 Ala. 225, 100 So. 202; School Dist. v. Twin Falls County, 30 Idaho, 400, 164 P. 1174.
Harwell G. Davis, Atty. Gen., and James J. Mayfield, of Montgomery, for appellees.
This is a suit against the state, and cannot be maintained. Fitts v. McGhee, 172 U.S. 516, 19 S.Ct. 269, 43 L.Ed. 535; Smith v. Reeves, 178 U.S. 436, 20 S.Ct. 919, 44 L.Ed. 1140; Hopkins' Case, 221 U.S. 636, 31 S.Ct. 654, 55 L.Ed. 890, 35 L.R.A. (N.S.) 243; Pitcock's Case, 91 Ark. 527, 121 S.W. 742, 134 Am. St. Rep. 88; Comer v. Bankhead, 70 Ala. 493; White v. Ala. Insane Hospital, 138 Ala. 479, 35 So. 454; Ala. Girls' Ind. School v. Reynolds, 143 Ala. 583, 42 So. 114. The courts will not control the discretion of public officers. Lehmann v. State Board, 208 Ala. 185, 94 So. 94; Miller v. State Board, 210 Ala. 619, 98 So. 893; Parke v. Bradley, 204 Ala. 455, 86 So. 28; Reetz v. Michigan, 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 563.
The bill in this case attacks the Act of 1923, page 769, which provides for the creation of an insurance fund and the insurance of state-owned buildings, and other things incident thereto. It first charges that the act was not legally passed because it violated House rule 18, which is set out in the bill, and, second, that certain provisions or sections there set out or referred to are repugnant to section 45 of the Constitution, in that they are not germane or cognate to the general subject dealt with in the title.
As to the first point, counsel candidly concede that the authorities are against his contention. The rule not being required by the Constitution, but adopted by the House for its own convenience, the fact that it may have been overlooked or violated in the passage of the act did not impair its validity. Tayloe v. Davis, ante, p. 282, 102 So. 433.
We think that the sections of the act attacked by the bill are not only cognate and germane to the general subject or purpose of the bill, as expressed in the title, but were essential to an execution of the scheme or purpose of the act.
The proviso in the last section of the bill gives the board ample authority to insure the state's property until sufficient funds are acquired, under the act, to carry adequate insurance. We cannot give this proviso so narrow a construction that it meant merely to authorize the renewal of existing policies and did not authorize the board to insure in other companies. It is broad enough to authorize the insurance of the state's property with any companies or associations which in the opinion and discretion of the board was advantageous to the state. As the board has the authority to act in the matter, and being public officials of the state, the propriety of their conduct cannot be controlled or directed by injunction. Equity will not intervene while public officers are acting within the authority conferred on them by law, to determine whether their action is good or bad. High on Injunctions, §§ 1308 and 1311; Lehmann v. State Board, 208 Ala. 185, 94 So. 94. Moreover, the bill is not so specific and definite as to charge that the contract of insurance entered into by the board with the mutual company has been fully executed, or whether or not they are negotiating and contemplating a final execution of the contract. If the contract has been fully executed, the water has passed the mill, and there is nothing to enjoin. On the other hand, if the arrangement is incomplete, we must presume that this official board will protect the interest of the state and tax payers against the woes and evils portrayed by the bill before a final, executed contract.
The learned trial court pretermitted deciding the question, suggested by appellee, that the bill could not be maintained because the state was the real party respondent and dissolved the injunction for want of equity in the bill. Neither are we disposed to pass on this question since the trial court correctly held that the bill was without equity, even if the suit was not against the state.
The decree of the circuit court is affirmed.
Affirmed.
GARDNER, THOMAS, and MILLER, JJ., concur.