author: JONES, Justice.

text:
    Hunter H. HORGAN, Jr. v. DAUPHIN ISLAND WATER AND SEWER AUTHORITY, et al.
    80-734.
    Supreme Court of Alabama.
    Feb. 19, 1982.

      M. A. Marsal and Ian F. Gaston, Mobile, for appellant.
    Maury Friedlander of Marr & Friedlan-der, Mobile, and Fournier J. Gale, III, and James L. Goyer, III, of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellees.
   JONES, Justice.

Appellant Hunter H. Horgan, Jr., a resident property owner of Dauphin Island, initiated the instant litigation seeking declaratory and injunctive relief against the Dauphin Island Water and Sewer Authority, Inc. The Authority, organized pursuant to Code 1975, § 11-88-1, et seq., thereafter filed an answer and counterclaim, seeking: 1) certification of the pending litigation as a class action; 2) a declaration that § 11— 88-40, et seq., (Article 2, Chapter 88, Title 11, Code 1975, under which the Authority proposes to construct improvements on Dauphin Island), was a general, rather than a local, law; and 3) that the Act lawfully delegated to the authority the power to assess property owners within its service area for the cost of improvements sought to be constructed.

The trial court so certified the proceedings and designated Plaintiff as a proper party to represent all property owners on Dauphin Island who oppose the actions of the Authority.

Following several evidentiary hearings, the trial court entered a final judgment, declaring that the subject Article 2 was a general, as opposed to a local, law; and that such enactment was the valid exercise of the legislative power to grant to a body corporate the authority to assess the cost of sanitary sewer improvements against the property drained, serviced, or benefited thereby to the extent of the increased value of the property by reason of the special benefits derived from the completed improvement.

The thrust of the testimony and documentary evidence establishes the following uncontested facts:

1. Article 2 (Act 826) was adopted as a general, rather than a local, law; therefore, it was not advertised pursuant to Section 106, Constitution of Alabama 1901 — the requisite procedure for passage of a local act.

2. The Authority was organized in proper form pursuant to the terms of that Act. Further, the Authority followed all of the required statutory procedures in preparation for construction of a sanitary sewer system on Dauphin Island.

3. Because of health requirements, based upon studies and recommendations by the Mobile County Health Department and the Environmental Protection Agency, a sanitary sewer system is essential to the present needs of the residents of Dauphin Island and to the island’s future growth and development.

Appellant’s brief, attacking the constitutionality of the statutes under which the Authority was organized, places the “local versus general law” dichotomy in perspective by the following brief review of the statutes’ legislative history:

“Section 11-88-1 through -21 was originally adopted as Act No. 107, Acts 1965, 1st Ex.Sess. That law provided for the establishment of fire, sewer and water systems and service areas throughout the State of Alabama.... Act Number 107 [Art. 1] was passed as a general law and that status is not questioned by Appellant.
“In 1973, Act No. 107 was amended by Act No. 826 which added § 11-88-40 through -111 [Article 2] to the original law. This act [was] also passed as a general law without first fulfilling the requirements of [the Constitution.]”

Thus, contends Appellant:

“[Act No. 826] provided for the creation of a new and different authority with only one function, the construction of a sanitary sewer system, which Authority could be established only in a narrowly defined geographic area and which, as distinguished from Authorities created under the other portions of the act, possessed the power to levy taxes.
“The fact that Act No. 826 is amendatory of or supplemental to an admittedly general law will not save it if it is in fact a local act as defined in Section 110 of the Constitution. Stone v. State, 233 Ala. 239 [171 So. 362]
“Act No. 826 is a local law for three distinct, but interrelated reasons. First, it is local in that it does not, * * * * in its term and effect [apply] to the whole state.... ’ ... Secondly, it is a law which limits the scope of its geographical operation by designation rather than classification. Finally, the ‘classification’ sought to be created therein is arbitrary and bears no relation to the purpose to be effected by the act.
“Prior to its amendment in 1978, Article IV, Section 110 of the Constitution defined a local law as one ‘which applies to any political subdivision or subdivisions of the state less than the whole.’ In Peddycoart v. City of Birmingham, Ala., 354 So.2d 808, this Court held that the section in question meant exactly what it said and that a statute, ‘ * * * If, when it becomes law, [it] applies only to the subdivision of the state, it is a local law.’
“At this juncture, the obvious question is whether Act 826 applies to less than the whole state. The answer to that question is to be found in an analysis of the act itself and prior case law.”

The Authority, citing Burns v. State, 246 Ala. 135, 19 So.2d 450 (1944), and Brandon v. State, 233 Ala. 1, 173 So. 238 (1936) (cases involving a § 106 challenge), claims mootness of the “local law” issue.

The asserted ground for mootness need not be addressed, and this for the reason that, as to the threshold issue on the merits, we hold that Section 106’s advertisement requisite is inapplicable, because Act No. 826 is a general law. The Act (Article 2, § 11-88-40, et seq.) empowers an authority organized under Article 1 (§' 11-88-1 through -21), with the consent of the county governing body, to construct and maintain improvements within “that part of its service area that is a resort area,” and to assess against the property benefited therefrom the cost of such abutting improvements. We find no geographical or territorial limitations inherent in the Act. Provisions of the Act restricting “resort area” to “an area located outside the corporate limits of any municipality” merely avoids conflict between the empowered authority and other entities properly exercising this power. See § 11-48-1, et seq.

Nor does the restrictive scope of operation of Article 2 violate constitutional standards. State ex rel. Montgomery v. Merrill, 218 Ala. 149, 117 So. 473 (1928), speaks to this point:

“It of course frequently occurs that in practical operation a general law will necessarily affect one section of the State to a greater extent than another — such, by way of illustration, laws regulating coal mines having vital effect in industrial sections but of less concern in rural communities, and likewise laws regulating oyster culture, and numerous other illustrations that might be given.” Merrill, 218 Ala. at 152, 117 So. 473.

An act relating to sewer service in resort areas no more partakes of the nature of a local act than does an act relating to the production of oil and gas. Not every county has, or may ever have, a resort area; nor is it reasonably contemplated that every county will ever have an oil or gas well. These circumstances, nevertheless, do not make either act a local law.

On the other hand, an act that, by its terms, applies to less than the whole State, or whose application is necessarily restricted to a given territory less than the whole, cannot be spared Section 106’s proscription. For example, an act regulating fishing gear in the streams lying within the watershed of Elk River is necessarily restricted in its application to less than the whole State and cannot be treated as a general law. See Opinion of the Justices, 278 Ala. 98, 176 So.2d 29 (1965), and State v. Lash, 350 So.2d 748 (Ala.Cr.App.1977).

Next, Appellant contends that the assessment provision of Act No. 826 transgresses the prohibition of Section 212 of the State Constitution:

“ ‘The power to levy taxes shall not be delegated to individuals or private corporations or associations.’ ”

Citing Collins v. Hollis, 212 Ala. 294, 102 So. 379 (1924), and Opinion of the Justices, 275 Ala. 386, 155 So.2d 343 (1963), Appellant asserts:

“There is no question that the ban on delegation of the power to tax extends to the Authority created under Act 826 since that Authority is not a county or a municipal corporation.”

The Authority answers:

“[Appellant’s] argument must fail for two reasons. First, assuming arguendo that special improvement assessments are part of the constitutional taxing power within the meaning of section 212, amendments 15, 22 and 257 to the Alabama Constitution, in their cumulative effect provide an exception to Section 212 sufficient to sustain Article 2. Second, almost universal authority, including decisions of this Court, recognizes that legislation concerning special improvement assessments like Article 2 is not subject to constitutional limitations on the taxing power because these assessments are not taxes in the constitutional sense.”

We reject the first and accept the second of the Authority’s grounds for affirmance as to this issue. The Authority’s brief contains the following succinct analysis of the problem:

“Plaintiff asserts that Article 2 is in violation of Section 212 of the Alabama Constitution as interpreted by this Court in Collins v. Hollis, 212 Ala. 294, 102 So. 379 (1924).[] ...
“In response to this Court’s decision in Collins v. Hollis, 212 Ala. 294, 102 So. 379 (1924), amendment 15 to the Alabama Constitution was ratified on November 15, 1924. This amendment attempted to authorize the Legislature to enact legislation providing for the formation of drainage districts to construct improvements and assess the cost of these improvements against the land increased in value by reason of the benefits derived from the improvements. This Court remained unconvinced, however, and ruled in State v. Grayson, 220 Ala. 12, 123 So. 573 (1929) that although amendment No. 15 was constitutional, the assessment power could be delegated only to counties and not to drainage districts despite the express language of the amendment. 220 Ala. at 18 [123 So. 573]. The decision in State v. Grayson was limited to the effect of amendment No. 15 on the Alabama Constitution ... Amendment No. 22 was not considered in the State v. Grayson opinion at all.
“Amendment No. 22, ratified on November 17, 1928, attempts to clarify the intent previously expressed in amendment No. 15, thereby supplanting this Court’s decision in State v. Grayson, 220 Ala. 12, 123 So. 573 (1929)... ,[]
“To further broaden the constitutional scope of the legislature’s ability to establish local improvement districts with the authority to assess property for the cost of the improvements, constitutional amendment No. 257 was ratified on November 17, 1966.[]
“The cumulative effect of amendments 15, 22 and 257 is to constitutionally empower the legislature to establish ‘drainage districts’ for the development of a ‘drainage system’ and ‘water management districts for the establishment of works of improvement for . .. the conservation, development, utilization, and disposal of water within the state.’ The question becomes therefore whether these three amendments apply to the legislation at issue in the present action.”

The parties cite numerous authorities, including several dictionary references, for their respective positions regarding whether a “drain” is a “sewer” and vice ver-sa. We hold, consistent with the Appellant’s argument, that constitutional Amendments 15, 22, and 257 do not embrace the activities which Authorities organized pursuant to Article 1 are empowered to perform. In other words, the “drainage system” improvements for which assessments are authorized by these constitutional amendments are separate and distinct functions from the “sewer and water” improvements authorized by Article 1 and for which property assessments are permitted by Article 2. The definition section of Article 1, as well as the substantive content of Article 2, make clear that the terms “sewer service” and “sewer system,” respectively, refer exclusively to “sanitary sewage” and “a sanitary sewer system.” The precedents cited by the Authority equating the two terms “drain” and “sewer” are unimpressive in the context of clear and unequivocal language that distinguishes the applicable constitutional provisions from the challenged legislative enactment.

These amendatory provisions of the Constitution speak, inter alia, to the management and disposal of excess surface water, while the subject legislation authorizes, inter alia, private corporations to deal with the problem of treatment and disposal of sanitary sewage. Moreover, the Authority’s insistence that the only distinction between the terms “drain” and “sewer” is that the former applies to rural environments and the latter applies to cities loses its force of persuasion in light of Article 2’s restrictive application to “only land which has been subdivided and platted.” In other words, an extensive degree of urbanization is a prerequisite to the Act’s applicability; thus, the Authority can hardly be allowed to take refuge in the “rural community” rationale of the older precedents in its effort to bring the “sewage” language of the challenged Act in line with the “drainage” language of the constitutional amendments.

Finally, we address what we perceive as the most difficult of the issues presented: Given the constitutionality of Article 1 — authorizing the formation of a corporation to construct and maintain a sanitary sewage system under the instant circumstances— but without the aid of Constitutional Amendments 15, 22, and 257 — dealing with drainage, not sewage systems — does the assessment provision of Article 2 run afoul of Section 212 of the State Constitution, prohibiting the delegation to private corporations of the power to levy taxes? If the assessment authorized by Article 2 is a tax, the question is self answering — it is unconstitutional.

Assuming the above-stated premise, the Authority does not contend otherwise; nor does it deny the holding of Collins v. Hollis, supra, that the power to levy assessments is part of the taxing power, limited to municipal corporations by Section 212. Rather, the Authority contends:

“As Justice Gardner noted in his dissent in Collins, however, based on this Court’s unanimous decision in Mayor and Aldermen of Birmingham v. Klein, 89 Ala. 461, 7 So. 386 (1889) (construing § 2 of the Alabama Constitution (1875), the predecessor of § 212 of the Alabama Constitution (1901)):
“ ‘[Provisions either in statutes or constitutions relating to general taxation, whether for state, county, or municipal purposes, have no application to special assessments made against the abutting property for street improvements, which have been benefited and enhanced thereby, to the value of the property so assessed [212 Ala. at 299, 102 So. 379].’
“The rationale for this rule, as explained by Justice Gardner, is that the part assessed receives a specific benefit equal to the amount of the assessment as distinguished from a tax for which he receives no specific benefit:
“ ‘The principle underlying special assessments to meet the cost of public improvements is that the property upon which they are imposed is peculiarly benefited, and therefore the owners do not, in fact, pay anything in excess of what they received by reason of such improvement. [212 Ala. at 299 [102 So. 379] (quoting City Council of Montgomery v. Birdsong, 126 Ala. 632, 28 So. 522 (1900) quoting Norwood v. Baker, 172 U.S. 269 [19 S.Ct. 187, 43 L.Ed. 443] (1898)).]’ ”

After careful and deliberate study of each of the cases and treatises cited by counsel for the respective parties, as supplemented by own independent research, we are constrained to overrule Collins and adopt Justice (later Chief Justice) Gardner’s dissent in that case. The problem we encounter with Collins lies in what we perceive as its own inconsistency. While its facial holding appears palpable, its rationale is totally out of tune with this Court’s treatment of the special improvement assessment/taxation dichotomy in all other contexts. This is the very point of Justice Gardner’s dissent in Collins and what undoubtedly prompted his reliance upon language from the earlier case of Mayor and Aldermen v. Klein, 89 Ala. 461, 7 So. 386 (1889):

“Are the provisions of [§ 212], referring as we have seen to general taxes and taxation, and to such only, expressed limitations on the power of the legislature with respect to local assessments on property to pay for local improvements, which benefit that particular property? We think not. The overwhelming weight of authority is against such a construction, and in favor of the validity of such assessments. In considering the question, jurists and judges have proceeded on the theory, that such charges were not taxes in the ordinary sense, or within the meaning and intent of constitutional provisions similar to those of Alabama, but that they are in the nature of compensation for a benefit peculiar to the owner of the abutting property, and traceable to him; that such assessments are not exacted for the general public welfare, and do not go to the support of governmental agencies from the existence and maintenance of which each citizen derives a like benefit, but that they are demandable because the government has expended an equivalent sum in improving the property against which they are laid, and thereby, not the public, but the individual owner of the property improved, has been to that extent the gainer. A tax, it is said, is a contribution to the general fund, the amount of it is taken from the individual, and nothing which benefits him individually, as distinguished from the mass of citizens, is given in the place of it. He pays, and by the amount he pays is poorer than he was before. Not so with an assessment of the class, we are considering. The property-owner pays it, but, in legal contemplation, he loses nothing. He receives the value of his money in the betterment of his property, and, in addition to this, he is benefited to the same extent that all other citizens are, in that a thoroughfare of the city in which his property is situated, and he probably lives, is improved. The authorities almost universally take such an imposition, though confessedly laid under the taxing power, out of the category of taxes and taxation, as those terms are employed in organic limitations on legislative power to levy or authorize the levying of taxes, and in general statutes. [Citations omitted.]” 89 Ala. at 465-66, 7 So. 386.

Subsequent to Collins, Klein’s theory of special improvement assessments was noted with approval in Bradford v. City of Huntsville, 215 Ala. 591, 112 So. 200 (1927), where it was observed that the holding that assessments are not taxes in the constitutional sense is “in agreement with authorities everywhere and has been followed by this Court.”

This observation is verified by two renowned treatise writers in the field of municipal law:

Yokley, Municipal Corporations § 549 (1958):

“The decisions clearly indicate that there is a distinction between taxes and special assessments. Many authorities affirm the principle that special assessments do not constitute taxes.
“It is thought not debatable that ap-portionments of the costs of road improvements to the lots and pieces of land lying within a road benefit district created by a city ordinance are not taxes within the purview of a constitutional provision, but are special assessments, for it has been held early and late that an assessment against property by reason of benefits derived from a public improvement is not, in the constitutional sense, a tax.
“[A] special assessment for benefits is not a tax within the constitutional concept of the word ‘tax’ and such an assessment is not subject to the constitutional limitations on taxation. Constitutional provisions dealing with the uniformity of taxation do not apply to special assessments [footnotes omitted].”

McQuillin, Municipal Corporations § 38.-01 (1970):

“Local assessments or special taxes for the payment of the cost of certain kinds of public improvements commonly prevail and are generally sustained under the exercise of the power of eminent domain, and hence constitutional provisions respecting this right have no application. They differ also from general taxes, since they are not a tax at all in the constitutional sense or as taxes are generally understood.... Provisions relating to taxation generally are uniformly held not applicable to local assessments or special taxation for improvements. [See MeQuil-lin’s footnote 9.]”

Collins, then, carved out an exception to the general rule; or, perhaps more accurately stated, it created a double standard for measuring the imposition of an “assessment” as a levy of taxes: One, in the context of an improvement assessment imposed by a municipality; and the other, in the context of an improvement assessment imposed by a legislatively authorized non-municipal corporation.

We find no rational basis for the formulation, or for the application, of different tests in determining whether the imposition of an improvement assessment constitutes the levy of taxes. If an improvement assessment by a city is not a tax under the Klein test, then, likewise, under the same test, the imposition of a special assessment for a sewer improvement against abutting property by a corporation organized pursuant to legislative enactment is not a tax. It is the nature and character of the improvement, and the type and object of the levy against the property so improved, not the entity imposing it, that determines whether such levy is a special improvement assessment or a tax.

Stated another way, the determining factor is not whether the Authority empowered by the legislature to construct the sewer system, and levy against the improved property to collect its costs, is a county, a municipality, or other corporate entity; rather, the test centers on the type of levy imposed. If the uniform ápplication of that test results in a determination that the levy imposed is an assessment and not a tax, and that its imposition is otherwise legally authorized, it will be constitutionally validated without regard to the identity of the entity imposing it. If, on the other hand, under the Klein test (as restated by Justice Gardner’s dissent in Collins), the levy is a tax and not a special assessment, its imposition will be constitutionally validated only if the imposing authority is a municipality (or other sovereign authorized to levy taxes).

Unquestionably, the Klein test for a special improvement assessment is met in the instant case. The Article authorizes the assessment against only “the property abutting on or drained, served, or benefited by such improvement to the extent of the increased value of the said property by reason of the special benefits derived from the said improvement.” § 11-88-42. The Authority, then, is empowered to assess the costs against only that property which is peculiarly benefited beyond the incidental benefit of the sewer system improvements to the community in general, and only to the extent of the increased value of the property so improved. In the words , of Justice Gardner: “The owners do not, in fact, pay anything in excess of what they receive by reason of such assessment.”

We hold, therefore, that the trial court did not err in upholding the constitutionality of the challenged statutes.

AFFIRMED.

All the Justices concur.

      . The last amended complaint named as parties defendant Dauphin Island Water and Sewer Authority, Inc., and its individual directors. For convenience, the Defendants are referred to as the Authority.

      . Opinion of the Justices, 275 Ala. 386, 155 So.2d 343 (1963), cited by Appellant, is inapplicable to the present proceeding, because it deals with a license tax rather than a special improvement assessment.

      . Constitutional Amendment No. 22:
      Section 1. The Legislature may form or provide for the formation of drainage districts for establishing and maintaining drainage systems; and provide for the assessment of the whole or part of the cost of such improvements against the land and property in such districts to the extent of the increased value thereof by reason of special benefits derived from such improvements and may provide for the issuance of bonds for such districts with or without an election.
      Section 2. This amendment shall be retroactive and retrospective and shall operate to ratify, confirm and validate the act of the legislature of Alabama, which act provided for the drainage of farm, wet, swamp and overflow land in the State of Alabama and authorized the organization of drainage districts, conferred the right of eminent domain to the extent necessary to carry out the purpose of said act and provided for raising of revenues by bond issue or otherwise to pay the cost and expense of installing and maintaining drainage systems so as to promote the public health and general welfare and, which act was approved March 4, 1915; and this amendment shall operate to confirm and validate all corporate organizations under the authority of such law, all procedure had, all acts done, all bonds issued, contracts entered into and assessments made by such corporations under authority of such law.

      .Constitutional Amendment No. 257:
      Section 1. The legislature may provide for the formation of water management districts for the establishment of works of improvement for the drainage of wet, swamp, and overflowed lands of the state, and for flood prevention or the conservation, development, utilization, and disposal of water within the state; confer the right of eminent domain for such purposes, provide for the taxing of the whole or part of the cost of such improvements against the land and property in such district to the extent of the increased value thereof by reason of special benefits derived from such improvements; and provide for the issuance of bonds for such districts with or without an election; provided, however, that nothing herein shall authorize any such water management districts to engage in or finance, directly or indirectly, the production, transmission or sale of electric power.
      Section 2. The provisions of this amendment are cumulative and shall not be construed to repeal amendment XV [15] or amendment XXII [22],

      . This argument is to the effect that the “open” nature of the conduit which characterizes rural drainage, as opposed to “closed” conduits in urban areas, is an insufficient distinction to warrant a different legal treatment of the two terms; thus, because “no part of the resort area ... lies within the corporate limits of any municipality,” the terms “drain” and “drainage,” as used in the constitutional amendatory language are sufficient to include the terms “sewer” and “sewage” in the context of the Authority’s power to construct and maintain a sewer system (and assess the abutting property for its costs) pursuant to Articles 1 and 2. This “open/closed” distinction — the rationale for which equates, rather than differentiates, the terms “drainage” and “sewage” — found favor in the earlier cases of the late 1800’s addressing this issue. The urbanization process of the 1900’s forced an abandonment of this earlier rationale. Indeed, the evolution which marks the modem trend to treat “sewers” and “drains” as separate and distinct matters without regard to their city or rural application is signaled by Black’s Law Dictionary: While its 4th edition states, “ ‘Sewers’ differ from ‘drains’ only in that the former are in cities, and generally covered over, while the latter are in rural communities and open ... ”, its 5th edition treats the terms “ ‘drain’ and ‘drainage districts’ as referring to the diversion of superfluous moisture from property and the reclamation of wet lands.”

      . Except for the broad language in Collins, supra (and its progeny), its holding, when confined to its peculiar facts, is susceptible of being distinguished from the instant case. Collins and its progenitor (Bradley v. State, 210 Ala. 166, 97 So. 543 (1923)) each dealt with legislative enactments (the Public Roads Act in Bradley and the Drainage Districts Act in Collins) which authorized “assessments” beyond the immediate improvement authorized under each act. In Bradley, the act authorized “assessments” against all property within the Road District. In Collins, the act authorized “assessments” against all property within the Drainage District. The Act in each case authorized the imposition of the “assessment” on all the lands in the district, limited only “in proportion to the benefits received by reason of such improvements.” Bradley, at 166, 97 So. 543. Put another way, our overruling of Collins is not to be interpreted as authorizing a nonmunicipal coporation to assess and collect taxes — a function constitutionally reserved to the sovereign — under the mere guise of an “assessment.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert GAFFORD v. John W. PEMBERTON, Clerk of the House of Representatives of the State of Alabama, et al.
    81-354.
    Supreme Court of Alabama.
    Feb. 23, 1982.

      Roger S. Morrow, Calvin M. Whitesell, Montgomery, for appellant.
    Wayne Turner and Charles A. Graddick, Atty. Gen., Montgomery, for appellees.
   PER CURIAM.

Appellant filed an action for a declaratory judgment on October 20, 1981, in the Circuit Court of Montgomery County to determine the validity and constitutionality of Act No. 81-953, Acts of Alabama, 1981. Appellant filed the declaratory action as a member of the Alabama House of Representatives and a resident voting citizen of the State of Alabama.

The declaratory action named as defendants the appellees — John W. Pemberton, Clerk of the Alabama House of Representatives; McDowell Lee, Secretary of the Alabama Senate; Joe C. McCorquodale, Jr., Speaker of the Alabama House of Representatives; and George D. H. McMillan, Jr., Lieutenant Governor of the State of Alabama — as public officials charged with the administration of Act No. 81-953, Acts of Alabama 1981. Gafford claims that there was substituted for House Bill 38 an altered or amended bill, which was passed as Act No. 81-953, in violation of Art. IV, § 61, of the Alabama Constitution.

The parties tendered the trial court a stipulation of facts. This stipulation is summarized as follows:

1. On August 4,1981, House Bill 38 was introduced in the House of Representatives. House Bill 38 proposed a constitutional amendment to provide for the budgetary process, the making of appropriations and a mandatory time in which to act, as well as a prohibition of other legislation.

2. On August 11, 1981, House Bill 38 was reported out of the House Judiciary Committee. Subsequently, a substitute bill was offered which was adopted by the House and then passed and sent to the Senate. The substitute bill proposed a statute to deal with the budgetary process. Substituted House Bill No. 38 was reported out of the Senate Finance and Taxation Committee and was passed by the Senate.

3. Governor James signed House Bill No. 38 as substituted and passed by both the House and the Senate; thus Act No. 81-953 became law on August 19, 1981.

At the final hearing on the declaratory action, the stipulation of facts and other evidence were presented to the court. In its final judgment the circuit court posed the question before it as being whether “a bill which is reported out of committee as a constitutional amendment [can] be altered or amended by either House to become a regular statutory bill and not be violative of Art. IV, Sec. 61 of the Constitution of Alabama upon its passage?”

The final judgment entered by the trial court is as follows:

“This cause comes before this Court upon Plaintiff’s Bill for Declaratory Judgment and Defendants’ answers thereto. At the date and time set for final hearing, the parties, represented by counsel, submitted a stipulation of fact and presented other evidence to this Court.
“The question before the Court is as follows: Can a bill which is reported out of committee as a Constitutional Amendment be altered or amended by either House to become a regular statutory bill and not be violative of Art. IV, Sec. 61 of the Constitution of Alabama upon its passage?
“Upon a careful reading of Art. IV, Sec. 6, ‘No law shall be passed except by bill, and no bill shall be so altered or amended on its passage through either House as to change its original purpose,’ it appears clear that it can be done.
“This Court cannot say that Act No. 81-953 is patently unconstitutional which it would have to do prior to ruling Act. No. 81-953 invalid.
“The Court finds that it has jurisdiction over the parties and the subject matter of the action. It is therefore,
“ORDERED, ADJUDGED AND DECREED by this Court as follows:
“1.) That Act Number 81-953 does not violate the Constitution of the State of Alabama.
“2.) That the costs are taxed to the Plaintiff, for which execution may issue.
“DONE this the 5th day of January, 1982.”

Notice of appeal was filed January 21, 1982. The record and a supplement thereto were transmitted to this Court on January 22, 1982. Appellant moved to correct the record and it was corrected on February 9, 1982, and as corrected the record on this appeal was filed in this Court February 9, 1982. In the meantime appellant moved to expedite the consideration of this appeal on the grounds that the Legislature was in regular session and the challenged Act restricted the passage of other legislation until bills making “basic” appropriations were signed by the presiding officer of each House of the Legislature. By order of this Court on February 1, 1982, this appeal was expedited and submitted on briefs on February 9, 1982.

The issues raised by appellant Gafford on appeal are: (1) Whether Act No. 81-953 violates Art. IV, § 61, of the Constitution of Alabama of 1901; (2) whether Act No. 81-953, violates Art. IV, § 45, of the Constitution of Alabama of 1901; and (3) whether Act No. 81-953 violates Art. IV, § 66, of the Constitution of Alabama of 1901.

House Bill No. 38 as originally introduced provided:

“SYNOPSIS: This bill proposes an amendment to the Constitution that provides for the manner for considering the budget bills and the time frame therefor.
“A BILL TO BE ENTITLED AN ACT
“Proposing an amendment to the Constitution prescribing the manner for legislative consideration of the general fund budget bill and the special educational budget bill and the time frame therefor.
“BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
“Section 1. The following amendment to the Constitution of Alabama of 1901 is proposed and shall become valid as a part thereof when approved and proclaimed as provided by law:
“PROPOSED AMENDMENT
“Commencing in the year 1982 and each regular session of the legislature thereafter the budget bills shall be the prior order of business and the continuing order of business, as follows:
“(a) On or before the second legislative day the Governor shall transmit to each house of the legislature a written document in form proper for introduction for each the general fund budget and the special educational fund budget; provided, however, the legislature may authorize a later legislative day by a favorable vote of two-thirds membership in each house.
“(b) Commencing on or before the tenth legislative day, one hour after convening, the House shall consider the budget bills, from day to day, until final voting by that body on each such budget bill. On the tenth legislative day if no committee action has been taken on such bills, the bills shall be considered automatically to be before the House on their third reading. The final voting shall not be taken more than three legislative days from the third reading of the bills. Except for the roll call of the districts, resolutions and local legislation, no other business of any nature whatsoever shall come before the House until a recorded vote is taken on each budget bill.
“(c) Commencing from the time the general fund budget bill or the special educational trust fund budget bill is received by the Senate, that body shall consider as its first order of business each such budget bill, from day to day, until final voting thereon. The final voting shall not be taken more than three legislative days from the third reading of each such budget bill. Except for the roll call of the districts, resolutions and local legislation, no other business of any nature whatsoever shall come before the Senate until a recorded vote is taken on each budget bill.
“(d) In the event either or both budget bills are referred to a Conference Committee, it shall submit its report within three legislative days. If such committee reaches no consensus by the third legislative day another Conference Committee shall be appointed and shall render its report within three legislative days. Thereafter a new Conference Committee may be appointed at any time until adjournment sine die. If either or neither budget bill is passed, the amount of funds appropriated for the previous fiscal year from the general fund or from the special educational trust fund, as the case may be, shall be automatically the appropriations for the fiscal year for which either or neither budget bill is enacted into law.
“(e) After final passage by the House and the Senate of the budget bills, no business of any nature whatsoever shall be transacted in either house until the Governor has signed each such budget bill.
“Section 2. An election upon the proposed amendment is ordered to be held on the first Tuesday after the expiration of three months from final adjournment of the current session of the legislature. The election shall be held in accordance with the provisions of Section 284 and 285 of the Constitution, as amended, and Sections 17-17-1 through 17-17-6 of the Code of Alabama 1975.
“Section 3.. Notice of the election and of the proposed amendment shall be given by proclamation of the Governor, which proclamation shall be published once a week for four successive weeks next preceding the day appointed for the election in a newspaper in each county of the state. In every county in which no newspaper is published, a copy of the notice shall be posted at each courthouse and post office.”

Act No. 81-953, as passed by the Legislature and signed by the Governor provides:

“An act, Relating to the legislative process in enacting certain appropriation acts; (a) requiring the Governor to transmit to the Legislature, on or before the second legislative day of each regular session held after January 1, 1982, a proposed budget; (b) providing that, until such time as bills making appropriations for the then ensuing fiscal year (or for such other budget period as may at the time be in effect) for the ordinary expenses of the executive, legislative and judicial departments of the state, for the payment of the public debt, and for education (to the extent that any such item is not otherwise provided for) shall have been signed by the presiding officer of each house in the manner provided in the Constitution, no bill (other than a bill making any part of any of the said appropriations), shall be signed by either the presiding officer of the House or Senate and transmitted to the other house; (c) providing that the provisions of this act prohibiting final passage of certain bills in either house may be made inapplicable by three-fifths vote of the house in which a bill is pending of a resolution declaring the said prohibition inapplicable to the bill specified in such resolution; (d) providing that upon the signing and presentation to the Governor in accordance with Sections 66 and 125 of the Constitution of bills making the said appropriations, the provisions of this act prohibiting the final passage of certain bills in either house shall cease to be effective and shall not be revived or become again effective for the then current regular session as a result of the subsequent legislative history of any bill so signed and presented or of a determination that such bill is wholly or in part invalid; and (e) providing that nothing contained in this act shall be construed as requiring the legislature to make any appropriation not otherwise required by the Constitution to be made, and (f) setting a termination date.

“BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

“Section 1. (A) The following words and phrases, whenever used in this act, shall have the following respective meanings:
‘Basie Appropriations’ means, with respect to any regular session of the Legislature, such appropriations as the Legislature may deem appropriate for the expenditures by the State during the ensuing Budget Period for the ordinary expenses of the executive, legislative and judicial departments of the State, for payment of the public debt, and for education (excluding, however, any item within the scope of the foregoing that is at the time provided for by a continuing appropriation or otherwise).
‘Budget Period' means a fiscal year of the State or such period other than fiscal year as may hereafter be fixed by law as the period with respect to which State budgets are prepared and State appropriations are made.
“(B) On or before the second legislative day of each regular session of the Legislature, beginning with the first regular session after January 1, 1982, the Governor shall transmit to the Legislature for its consideration a proposed budget for the then next ensuing Budget Period.
“(C) The duty of the Legislature at any regular session to make the Basic Appropriations for any Budget Period that will commence before the first day of any succeeding regular session shall be paramount; and, accordingly, beginning with the first regular session held after January 1, 1982, no bill (other than a bill making any of the Basic Appropriations) shall be signed by either the presiding officer of the House or Senate and transmitted to the other house until bills making the Basic Appropriations for the then ensuing Budget Period shall have been signed by the presiding officer of each House of the Legislature in accordance with Section 66 of the Alabama Constitution and presented to the Governor in accordance with Section 125 of the Constitution; provided, that this paragraph (C) shall not affect the adoption of resolutions or the conduct of any other legislative functions that do not require a third reading; and provided further, that following adoption, by vote of either house of not less than three-fifths of the members elected to that house, of a resolution declaring that the provisions of this paragraph (C) shall not be applicable in that house to a particular bill, which shall be specified in said resolution by number and title, the bill so specified, may proceed to final passage therein.
“(D) Upon the signing and presentation to the Governor in accordance with the said Sections 66 and 125 of bills making the Basic Appropriations, the provisions of the foregoing paragraph (C) prohibiting the final passage of bills in the House and Senate (other than bills making any part of the Basic Appropriations) shall cease to be effective and shall not be revived or become again effective as a result of (i) the subsequent legislative history of any bill so signed and presented, including any veto, return with executive amendment, or any other action, or failure to act, by either the Governor or the Legislature under the provisions of the said Section 125; or (ii) a determination, by either judicial decree or opinion of the Justices of the Alabama Supreme Court, that any bill so signed and presented is wholly or in part invalid.
“(E) The Legislature may, by statute or rule, make such further provisions for the timely passage of bills making the Basic Appropriations.
“(F) Nothing contained herein shall be construed as requiring the Legislature to make any appropriation not otherwise required to be made.
“Section 2. All laws or parts of laws which conflict with this act are hereby repealed.
“Section 3. The provisions of this act are severable. If any part of this act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.
“Section 4. This act shall become effective on January 1, 1982 and shall self-terminate on July 1, 1982.”

House Bill 38, as originally introduced proposed by bill a constitutional amendment, the “purpose” of which was to propose a constitutional amendment to require the Legislature to pass budgets and appropriations necessary for the operation of our state government, prior to the consideration and passage of other bills by the Legislature. The substitute bill proposed a statute, the “purpose” of which was to establish a paramount duty on the Legislature to consider and pass bills making appropriations necessary for the operation of our state government and to present such bills to the Governor before any other bills are signed by the presiding officer of either House of the Legislature. The “title” to House Bill 38 as originally introduced shows that it was a proposed constitutional amendment. The title to substituted House Bill 38 shows it is “an act.”

The first question posed on appeal addresses Art IV, § 61, of the Constitution, which provides: “No law shall be passed except by bill, and no bill shall be so altered or amended on its passage through either House as to change its original purpose.” The appellant submits that the substitution of a bill proposing a statute for a bill originally introduced proposing a constitutional amendment so alters the purpose of the original bill as to violate § 61.

Neither the appellant nor appellees have cited in their respective briefs any controlling precedents or authority from prior case law in this state or from other jurisdictions which addresses the precise issue, here presented as to Section 61. Accordingly, this Court must ascertain the meaning of the phrase “to change its original purpose” in Section 61 of the Constitution as the same relates to the authority of the Legislature to change an original bill proposing a constitutional amendment into a bill that proposes the enactment of a statute. Clearly, the legislative bodies can do both, but can they lawfully first propose a constitutional amendment and then amend that bill into a statute during the legislative process? We note that both proposals, the original House Bill 38 and the substitute therefor, do propose the establishment of some sort of priority or paramount duty to be imposed upon the Legislature to consider an act on budgetary matters and appropriation bills before other legislative bills are taken up and considered. It is observed, however, that the act as finally passed provides that it becomes effective on January 1,1982, and then “self-destructs” or terminates on July 1, 1982. Therefore, Act No. 81-953 would have no effect on future Legislatures. One might then characterize this Act as a trial or experiment in legislative process and procedure. Obviously, the budgetary process is a most important duty which is conducted at each regular session of the Legislature.

Without question, Act No. 81-953 established a legislative rule of procedure, and our Constitution grants the power to each house to make rules governing its procedure. Ala.Const., Art. IV, § 53. While this power is usually exercised by the Legislature in adopting rules or procedure for each house, and joint rules, the Legislature has in the past adopted a rule or regulation of procedure by statute. Act No. 31, Acts of Alabama 1919, page 33; Code 1975, § 41-20-10(a).

In resolving the first issue presented in this appeal, we must consider the basic differences in statutory law and constitutional law. The Legislature can only propose a constitutional amendment; it cannot enact one. Constitution 1901, Art. XVIII, §§ 284 through 287, as amended. The legislative procedure for proposing constitutional amendments is specifically provided for in Article XVIII of the Constitution and not in Article IV relating to .the Legislature. Only upon an affirmation vote of a majority of our citizens at a state-wide election can our basic law be amended; a constitutional amendment, until subsequently changed by the same process, permanently controls the matters provided for therein. Provisions of our Constitution are of a higher order of law than statutes. Constitutional provisions are more basic and permanent than statutes. The Legislature acting in its plenary power can adopt or amend a statute by majority vote of both houses, and upon approval by the Governor, it becomes law.

In proposing amendments to the Constitution under Section 284, as amended, the Legislature is not exercising its power to make laws. In Johnson v. Craft, 205 Ala. 386, 393, 394, 87 So. 375 (1921), this Court discussed the applicable principles of law which apply:

“The provisions of the Constitution providing for its amendments are mandatory, not directory — binding on the people themselves and concluding every department, body, officer, and agency under its authority. Authorities supra; 12 C.J. pp. 688, 689. The power granted the Legislature to propose amendments to the Constitution is a particular, special power, not possessed by the Legislature otherwise than through grant by the instrument itself. It can only be exercised in the mode prescribed, and the mode defined is the measure of the power. Collier v. Frierson [24 Ala. 100], supra; Oakland, etc., Co. v. Hilton, 69 Cal. 479, 514, 11 P. 3; Jones v. McDade [200 Ala. 230, 233, 75 South. 988], supra. It results from the system and the provision of the Constitution that in proposing amendments to that instrument, to be voted upon by the electorate, the Legislature is not exercising its other power to make laws. Jones v. McDade, supra; Livermore v. Waite, 102 Cal. 113, 36 P. 424, 25 L.R.A. 313, 315, 316; 12 C.J. p. 693; 6 R.C.L. § 19, pp. 28, 29. Recognition of this last-stated principle — resultant, as it is, from those previously reiterated — is an essential prerequisite to any sound, logical conclusion upon the objection now being considered. To ignore it or to deny it appropriate effect is to invite error in judgment and to court the affirmation of inexcusable fallacy.”

205 Ala. 386, 393, 394.

Significantly, many constitutional provisions relating to the enactment of statutes are not applicable to procedure amending the Constitution.

“Proposed amendments to the Constitution are governed by sections 284-287, inclusive, of our Constitution, and limitations and restrictions applicable to the legislative function of enacting statutes are without application.”

Opinion of the Justices, No. 29,227 Ala. 296, 298, 149 So. 781 (1933).

Section 61 of the Constitution does not apply to bills proposing constitutional amendments. Opinion of The Justices, 227 Ala. 296, 149 So. 781 (1933); Jones v. McDade, 200 Ala. 230, 75 So. 988 (1917). Section 61 does apply to statutes enacted by the Legislature.

There are other differences between proposed constitutional amendments and acts of the Legislature. The approval of the Governor is not required on a bill enacted by the Legislature proposing constitutional amendments. See, Ala.Const. Art. XVIII, § 284, as amended. Statutes are enacted upon majority vote, while bills proposing constitutional amendments require a vote of three-fifths of all members elected to each house. Ala.Const. Art. IV, § 63 and Art. XVIII, § 284, as amended.

Since Act No. 81-953 was enacted into law as a statute, we hold that the provisions of Section 61 of the Constitution are applicable, and control the legislative process. The original “purpose” of House Bill 38, as introduced, was to propose a constitutional amendment, that is, a basic, permanent change in the supreme and paramount law of this state.

“The Constitution of Alabama, like that of the nation and of the other states, is the supreme law within the realm and sphere of its authority. Subject only to the restraints resulting from the Constitution of the United States, the Constitution of Alabama is the highest form and expression of law that exists in this state. The source of its creation and the character of its sanction, viz. the people’s deliberate will, invest the Constitution with its paramount quality. The Constitution’s control is absolute wherever and to whatever its provisions apply; and every officer, executive, legislative, and judicial, is bound by oath (section 279) to support the Constitution, to vindicate and uphold its mandates, and to observe and enforce its inhibitions without regard to extrinsic circumstances. It commits to no body, officer, or agent any authority or power whatever to change or modify or suspend the effect or operation of its mandates or its prohibitions; the instrument itself prescribes the exclusive modes by which it may be altered or amended, or its effect and operation changed. Otherwise than as these exclusive modes contemplate and authorize the Constitution’s alteration, its character is permanent, its force and influence enduring.... ”

Johnson v. Craft, 205 Ala. at 393, 87 So. 375.

As was stated in the early history of this State, in the case of Perry County v. Selma, Marion & Memphis Railroad Company, 58 Ala. 546 (1877), this Court held:

“We adopt, as our own, the language of one of the soundest and most thorough thinkers and jurists, who have written on the subject of organic law, embodied in our constitutions:
“ ‘The courts tread upon very dangerous ground when they venture to apply the rules, which distinguish directory and mandatory statutes, to the provisions of a Constitution. Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the thing to be done; and they must then be regarded in the light of limitations upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims, and fix those unvarying rules, by which all the departments of the government must at all times shape their conduct. * * * We are not, therefore, to expect to find in a Constitution provisions which the people, in adopting it, have not regarded as of high importance, and worthy to be embraced in our instrument which, for a time at least, is to control alike the government and the governed, and to form a standard by which is to be measured the power which can be exercised as well by the delegate, as by the sovereign people themselves. If directions are given respecting the times or modes of proceeding in which a power should be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only.’ — Cooley Const. Lim. 78.”

58 Ala. at 556.

The violation of Section 61 occurs when the “purpose” of the bill passed is different from the original “purpose” of the bill as introduced. The “purpose” of a bill within this section is the general purpose of a bill, not the-mere details through which its purpose is manifested and effectuated. Opinion of the Justices, 361 So.2d 536 (Ala.1978); Comer v. City of Mobile, 337 So.2d 742 (Ala.1976); Blackwell v. State, 230 Ala. 139, 162 So. 310 (1935); State Docks Commission v. State, 227 Ala. 521, 150 So. 537 (1933). We hold that a bill proposing an amendment to our Constitution which is altered or amended on its passage through either house into a bill proposing the enactment of a statute has been changed in its original purpose. Changing a proposal to amend the Constitution into a bill proposing the enactment of a statute is not a mere detail through which the original purpose is manifested and effectuated. Such procedure violates Section 61 of the Constitution, and voids the resulting statute. Accordingly, Act No. 81-953 is invalid and therefore void, having been enacted contrary to and in violation of Section 61 of the Constitution.

In view of our holding with respect to the application of Section 61 of the Constitution, it is not necessary to address the other issues raised on this appeal. The judgment of the trial court is reversed and a judgment is rendered declaring Act 81-953 null and void.

REVERSED AND RENDERED.

All Justices concur, except JONES, J., not sitting.


author: ADAMS, Justice.

text:
    SCOTT PAPER COMPANY, Hubert Edge and C. R. Summers v. Carol S. GRIFFIN and Elizabeth Sawyer, et al.
    80-422.
    Supreme Court of Alabama.
    Feb. 26, 1982.

      Charles C. Partin and C. Lenoir Thompson of Stone, Partin, Granade & Crosby, Bay Minette, for appellants.
    Allan R. Chason of Chason & Chason, Bay Minette, for appellees.
   ADAMS, Justice.

This appeal involves a quiet title action and comes to us from the Circuit Court for Baldwin County. Appellants, Scott Paper Company (Scott Paper), Hubert Edge (Edge), and C. R. Summers (Summers), contend that the provisions of Code 1975, § 35-6-100, do not apply to them under the facts of this case. That statute allows a joint tenant or a tenant in common to purchase the interest of a petitioning joint tenant or tenant in common who seeks to have the jointly held property sold for division. Appellees, Carol S. Griffin (Griffin) and Elizabeth S. Sawyer (Sawyer), moved to invoke the provisions of § 35-6-100 and thereby purchase appellants’ interest in the disputed lands. The trial court granted ap-pellees’ motion over appellants’ objection and entered an order and final judgment appointing an appraiser and allowing appel-lees to purchase interests in the lands. Appellants then perfected this appeal.

Three issues, and the questions posed thereby, are presented for our review:

1. Whether § 35-6-100 applies to this case, which was commenced prior to its effective date.

2. Whether appellees could invoke § 35-6-100 after a pretrial order was made and the case was set for trial.

3. Whether appellees are within the class entitled to invoke § 35-6-100.

We answer all three in the affirmative and thereby affirm the judgment of the trial court.

This case has a long and tortuous history. It began almost 25 years ago. Fortunately, a detailed review of its history and facts is unnecessary for our review of the limited issues presented. Accordingly, we will recite only those facts pertinent to the resolution of those issues.

Griffin and Sawyer claim their interests in the disputed properties through a chain of title derived from Asheton B. Slaughter. Appellants claim their interests through a chain of title derived from the persons known as the Johnson heirs. Slaughter filed an in personam quiet title action on May 5, 1957, claiming title to some of the disputed properties. On July 10, 1959, Lee Johnson and Emma Johnson filed an answer and cross-bill seeking a determination of ownership interests and requesting a partition or a sale for division. Scott Paper intervened on January 15,1974, claiming an interest in some of the properties and requesting a sale for division. Griffin and Sawyer were substituted for Slaughter as plaintiffs. On November 13, 1979, they moved to add Summers and Edge as additional defendants regarding one of the disputed parcels of property, asking for a partition or sale for division of the surface rights in that parcel.

A pretrial conference was held on October 21,1980. Pursuant to agreement of the parties, a pretrial order was entered that provided for the trial court to grant the “counterclaim” of the Johnson heirs. The quiet title action filed by Slaughter was dismissed. Because the parties agreed that the properties could not be equitably partitioned in kind, a sale for division was ordered. The case was set for trial on issues concerning respective ownership interests in the properties and attorney’s fees. Trial was scheduled for December 16, 1980, but was continued one day before that for the purpose of allowing Griffin to obtain a new attorney. During the continuance, on December 30, 1980, Griffin invoked the provisions of § 35-6-100, and requested the appointment of an appraiser. Shortly thereafter, Sawyer did the same. Appellants filed motions in opposition to Griffin and Sawyer’s requests under § 35-6-100, but they were denied by the trial court. The trial court entered a final order, and the appellants then perfected this appeal.

Appellants first argue that the trial court’s application of § 35-6-100 violated their rights under Ala.Const.1901, § 95. Specifically, they argue that their defense to the quiet title action was destroyed when the trial court allowed the sale for division to be controlled by § 35-6-100. In pertinent part, Ala.Const.1901; § 95 provides:

After suit has been commenced on any cause of action, the legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit.

Appellants note that prior to the effective date of § 35-6-100, they had the right to bid on the properties if a sale for division was ordered. However, they also note that when § 35-6-100 became effective on July 17, 1979, they no longer had a right to bid on the properties if that section was invoked. That section provides:

Upon the filing of any petition for a sale for division of any property, real or personal, held by joint owners or tenants in common, the court shall provide for the purchase of the interests of the joint owners or tenants in common filing for the petition or any others named therein who agree to the sale by the other joint owners or tenants in common or any one of them. Provided that the joint owners or tenants in common interested in purchasing such interests shall notify the court of same not later than 10 days prior to the date set for trial of the case and shall be allowed to purchase whether default has been entered against them or not. [Emphasis added.]

In Prince v. Hunter, 388 So.2d 546 at 547 (Ala.1980), this court observed:

The statute ostensibly was drafted to protect joint owners from being divested of their property in a forced sale by allowing them the option to purchase the filing joint owner’s interest.... The statute in using the word “shall” makes it mandatory, upon the filing of a petition for sale for division, that the court provide for the purchase of the petitioner’s interest by the other joint owners if they notify the court of their interest in purchasing petitioner’s interest at least ten days before the day set for trial.

Thus, when the trial court allowed Griffin and Sawyer to invoke § 35-6-100, appellants lost the opportunity to bid on the disputed properties.

In arguing against the retrospective application of § 35-6-100, appellants attempt to distinguish their case from Kittrell v. Benjamin, 396 So.2d 93 (Ala.1981). Kittrell v. Benjamin, upheld the retrospective application of § 35-6-100 in a sale for division where some pleadings were filed before its effective date and where the case remained pending after that section became effective. The same situation is present here. Nevertheless, appellants contend that Kittrell v. Benjamin, is distinguishable. They point out that in Kittrell v. Benjamin, apparently all parties agreed that they were tenants in common. In the present case, Griffin and Sawyer’s predecessor in title commenced action against appellants’ predecessors in title, contending they had no interest in the disputed properties. Appellants say further that their predecessors in title asserted the defense that they were tenants in common and sought a partition of the properties or a sale for division. Because they did so, appellants insist that § 35-6-100 cannot be applied retrospectively so as to destroy their defense.

At the outset, we are obliged to make a fundamental observation concerning appellants’ argument. The request for a sale for division, with its attendant right to bid on the disputed properties, is not a “defense” in any sense of the word. The request is an alternative form of relief for disposing of those properties and providing each cotenant with compensation for his interest. Code 1975, § 35-6-20, enables co-tenants to effect a sale for division of property that cannot equitably be divided in kind. Madison v. Lambert, 399 So.2d 840 (Ala.1981). In Madison v. Lambert, this court rejected an argument that § 35-6-100 destroyed a “right" to a public sale for division. “The only change brought about by § 35-6-100, et seq., is the manner in which the sale is effectuated.” Madison v. Lambert, at 842-3. Accordingly, we cannot agree with appellants that retrospective application of § 35-6-100 violated their rights under Ala.Const.1901, § 95.

Next, appellants advance several arguments in support of their theory that Griffin and Sawyer invoked § 35-6-100 too late for it to be applied. They point out the fact that trial was scheduled for December 16, 1980, and appellees did not invoke § 35-6-100 until after that date as the result of a continuance that was granted. Appellants would conclude that the ten day notice requirement of the statute was not met. A party seeking to invoke § 35-6-100 must notify the court of his intention to do so “not later than 10 days prior to the date set for trial of the case . . . . ” § 35-6-100. In essence, appellant would have us read the statute as saying “not later than 10 days prior to the date first set for trial of the case.... ” We cannot agree with such a restrictive interpretation. Appellants’ interpretation would indirectly infringe upon the discretion of the trial court to grant continuances, and directly prevent the trial court from entertaining an otherwise valid motion due to the fact a continuance from a date set for trial had been granted previously. The granting of a motion for continuance lies within the discretion of the trial court and is not to be disturbed on appeal absent a clear showing of abuse of that discretion. Marshall v. Howze, 387 So.2d 808 (Ala.1980); B & M Homes, Inc. v. Hogan, 376 So.2d 667 (Ala.1979); Arant v. Grier, 286 Ala. 263, 239 So.2d 188 (1970). In the instant case, we cannot say that the trial court abused its discretion in granting the continuance from the December 16, 1980, trial date. After the continuance was granted, appellees invoked § 35-6-100 more than ten days prior to the newly scheduled trial date. Under these circumstances, the trial court properly entertained and granted appellees’ motion invoking § 35-6-100.

Appellants argue that appellees’ request under § 35-6-100 violated the pretrial order that had been reached among the parties and approved by the trial court. Appellants state that the pretrial order incorporated a settlement agreement whereby it was “understood” that there would be a public sale. If that was the case, it is not reflected in the record. The pretrial order of October 30, 1980, provides, in pertinent part:

3. At trial the court will dismiss the bill to quiet title filed by the Slaughters and grant the counterclaim filed by the heirs of Mary Johnson and James Johnson for a sale of the property and a division of the sale proceeds.

Nowhere in the pretrial order do we find an agreement specifying that the properties would be sold at a public sale. The pretrial order and record are, in fact, silent as to the manner in which the sale would be accomplished. Even in the absence of § 35-6-100, the agreement as encompassed in the pretrial order would not allow appellants the result they seek. Where a sale for division is appropriate, the trial court could order either a public or private sale. Deverell v. Horton, 285 Ala. 588, 234 So.2d 879 (1970); Copeland v. Giles, 271 Ala. 302, 123 So.2d 147 (1960). Thus, before § 35-6-100 was enacted, the trial court could order either a public or private sale in a sale for division. After that statute was enacted, a proper request mandated a sale in accordance with its provisions. Prince v. Hunter, 388 So.2d 546 (Ala.1980). Because the record discloses no agreement to the contrary, we find that appellees properly invoked § 35-6-100.

Next, appellants theorize that because a pretrial order governs the course of further action, it was error for the trial court to allow the sale for division pursuant to § 35-6-100 without amending it. We agree that a pretrial order may govern the future course of litigation in the action before the trial court. Currie v. Great Central Insurance Company, 374 So.2d 1330 (Ala.1979); Hardy v. Sawyer, 352 So.2d 1104 (Ala.1977). The problem with appellants’ reasoning is that as the pretrial order stood, it lacked a provision for the manner of sale of the properties. Clearly, a further order of the trial court was necessary. When the trial court ruled favorably to appellees’ motions to invoke § 35-6-100, over appellants’ objections, it provided a means for effecting the sale through its order. Because we have decided already that appellees could invoke § 35-6-100, we find no error in the trial court’s order allowing them to invoke it. Nevertheless, appellants argue further that the trial court’s order allowing § 35-6-100 to be applied to this case was erroneous because it did not actually amend the existing pretrial order. Assuming, without deciding, that it was necessary to formally amend the existing pretrial order, we still cannot agree with appellants’ contention that reversible error occurred. If it was error not to formally amend the pretrial order, it was merely an error in a matter of form and harmless error under the facts of this case. The record fails to show, and no one could contend seriously, that such an alleged error in form prejudiced any party. We, therefore, find appellants’ arguments on this issue to be without merit.

Finally, appellants contend that ap-pellees are not within the class entitled to invoke the provisions of § 35-6-100. Appellants insist that Griffin and Sawyer, by seeking a partition or sale for division of the surface rights of one of the parcels of property through their amended complaint in November 1979, and by agreeing ultimately to the sale for division at the pretrial conference, took themselves out of the class entitled to assert § 35-6-100. They theorize, in effect, that Griffin and Sawyer, by their actions, have placed themselves in the position of those petitioning for a sale for division of the properties. If appellants’ theory is sound, appellees arguably would not be entitled to invoke § 35-6-100. However, considering appellants’ theory, we observe that it was appellants, or their predecessors in title, who originally petitioned for the sale for division of the disputed properties. Although appellees did seek a sale for division of the surface rights of one of the parcels of property, we note that the parties, as reflected in the pretrial order, agreed that the quiet title action filed by appellees’ predecessors in title would be dismissed and that the “counterclaim” of appellants’ predecessors in title seeking the sale for division would be granted. The pretrial order in this case superseded appellees’ earlier pleading requesting a sale for division of one of the parcels of property. Currie v. Great Central Insurance Company, supra. At the time that appellees invoked § 35-6-100, appellants were clearly the “petitioners” under that statute. To characterize them otherwise would be an unfair interpretation of the facts of this case.

Appellants’ contention that appellees lost their right to invoke § 35-6-100, by agreeing to a sale for division at the pretrial conference, likewise, is without merit. To hold that appellees, who had the status of respondents to appellants’ petition for sale for division, could not agree to the sale without losing the benefit of the statute would serve only to encourage full litigation of such actions, and would discourage compromise and pretrial settlement. The result urged by appellants cannot be sanctioned.

Citing Ragland v. Walker, 387 So.2d 184 at 185, (Ala.1980), appellants insist that because the purpose of § 35-6-100 is to preserve estates, appellees are not entitled to the benefit of its provisions. They maintain that because appellees’ title to the disputed properties derives from a 1927 sheriff’s sale, and because they are not heirs of the Johnsons, the original owners, appellees cannot invoke the statute. We disagree. This court noted in Ragland v. Walker, supra, that preservation of family estates by preventing title from passing to a stranger is a purpose of § 35-6-100. However, neither this court nor the statute has limited its application solely to family estate situations. By the wording of the statute, it applies to “any property, real or personal held by joint owners or tenants in common . ... ” § 35-6-100 (emphasis added). Appellants’ restrictive interpretation is unsupported by this court’s decisions and the language employed in the statute. We, therefore, decline to further consider their argument. The parties agreed, as reflected in the pretrial order, that appellees are tenants in common in the disputed properties. Consequently, we hold that they are within the class entitled to invoke § 35-6-100.

For all of the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: FAULKNER, Justice.

text:
    Marcus M. JONES, III, individually and as next friend for Brett A. Jones, a minor v. Von Edgar McMONIGAL, et al.
    80-486.
    Supreme Court of Alabama.
    Feb. 26, 1982.
    William N. Clark of Redden, Mills & Clark, Birmingham, for appellant.
    W. Michael Atchison of Starnes & Atchi-son, Birmingham, for appellees.
    Lyman H. Harris, Judy C. Whalen, and Michael J. Evans of Lorant, Harris & Year-out, Birmingham, for appellee Von Edgar McMonigal.
   FAULKNER, Justice.

This appeal from a personal injury case alleges that the trial court committed error in denying the motion of the Joneses (plaintiffs/appellants) for a new trial because of improper conduct of jurors during the trial. Appellees admit that at least one juror took an unauthorized view of the scene of the accident and that the jurors discussed these observations and the evidence before the case was submitted to them.

On September 17,1977, between 6:30 and 7:00 P.M., Von Edgar McMonigal was driving his automobile along the road through Twin Gates East Apartments in Birmingham when Brett A. Jones, a five year old boy, ran in front of his car and was hit. Brett Jones and his father sued Mr. McMo-nigal and Twin Gates Apartments, alleging negligence on the part of both defendants. At the trial of the case the jury returned a verdict for defendants and judgment was entered thereon.

The Joneses filed a motion for a new trial accompanied by affidavits from their attorney, Mr. Clark, and a juror, Mrs. Glasgow. These affidavits stated that two jurors had gone to the scene of the accident during the trial and that the jurors had discussed the case among themselves during recesses and at other times, before the case was submitted to them; Mrs. Glasgow also stated that, in her judgment, some of the jurors had reached a verdict in their minds, before the case was submitted, because of these discussions. The court held a hearing on the motion for new trial at which three jurors testified about these visits and discussions; the court, however, denied the motion.

While the jurors’ conduct was improper, the law in Alabama is that such impropriety must indicate bias or corruption of the jurors or that the misconduct affected the verdict of the jurors before the denial of a motion for new trial becomes reversible error. Carr v. Irons, 288 Ala. 211, 259 So.2d 240 (1972); Hood v. Kelly, 285 Ala. 337, 231 So.2d 901 (1970); Blakeney v. Alabama Power Co., 222 Ala. 394, 133 So. 16 (1931). The record here indicates no bias or corruption, and the trial court could properly have concluded that the misconduct did not affect the verdict. Mrs. Glasgow’s claim that the other jurors’ verdict was affected by the views and discussions is contradicted by the testimony of the other jurors at the hearing. Allman v. Beam, 272 Ala. 110, 130 So.2d 194 (1961).

Because the record and the above-cited authorities support the decision of the trial court that the jurors’ misconduct did not require a new trial, we affirm.

AFFIRMED.

TORBERT, C. J., and ALMON, EMBRY and ADAMS, JJ., concur.