Collier v. Frierson

| Ala. | Jan 15, 1854

GOLDTHWAITE, J.

The twenty-third section of the fourth article of the constitution, as it was originally adopted by the people in convention, is in these words: “A State Treasurer and a Comptroller of Public Accounts shall be annually elected, by the joint vote of both Houses of the General Assembly.”— The main question in the case before us, is, whether this section has been changed.

The constitution can be amended in but two ways : either by the people, who originally framed it, or in the mode prescribed by the instrument itself. If the last mode is pursued, the amendments must be proposed by two thirds of each House of the General Assembly; they must be published in print, at least three months before the next general election for representatives ; it must appear, from the returns made to the Secretary of State, that a majority of those voting for representatives have voted in favor of the proposed amendments; and they must be ratified by two thirds of each House of the next General Assembly after such election, voting by yeas and nays, the proposed amendments having been read, at each session, three times, on three several days, in each House. — Con. Ala., Clay’s Dig. XL.

We entertain no doubt, that, to change the constitution in any other mode than' by a convention, every requisition which is demanded by the instrument itself, must be observed, and tho omission of any one is fatal to the amendment. We scarcely deem any argument necessary to enforce this proposition. The constitution is the supreme and paramount law.— The mode by which amendments are to be made under it is dearly defined. It has been said, that certain acts are to be done — certain requisitions are to be observed, before a change can be effected. But to what purpose are these acts required, or these requisitions enjoined, if the Legislature or any other department of the government, can dispense with them. To do so, would be to violate the instrument which they are sworn to support; and every principle of public law and sound constitutional policy requires the courts to pronounce against every amendment, which is shown not to have been made in accordance with the rules prescribed by the fundamental law.

W e now proceed to the inquiry, as to whether the requisitions ot tho constitution have been complied with, so as to effect a change in the section referred to.

The joint resolutions adopted at the session of 1844-5, (Sess. Acts 208,) proposed eight amendments to the constitution, one of which was the striking out the word “annual,” and inserting “biennial” in its place, in the twenty-third section of the fourth article, which would have had the effect of increasing the tenure of the office of the Treasurer and Comptroller to two years.

By the act approved the 24th of January, 1845, (Sesssion Acts 209,) it was made the duty of the sheriff's, and other officers superintending the elections, to require the electors to vote only on two of the amendments offered, neither of which, however, embraced the amendment proposed in relation to the twenty-third section of the fourth article; but, as the constitution gave the elector the right to vote on all of the amendments, the act of 1845 could not deprive him of this right, The law was certainly objectionable, as its obvious tendency would be to prevent the expression of the opinion of the electors upon any other of the proposed amendments, than those brought directly to their notice by the questions of the returning officer. It was, however, the constitutional duty of the officers, to open a poll for, and make return to the Secretary of State of, the vote on the amendment proposed ; and the duty thus imposed could not be affected by the act referred to. As to whether the returns made show that a majority of those voting in favor of representatives, voted in favor of the amendments, as the case is presented before us, we cannot inquire. We must presume that the returns were duly made, and the basis properly laid, for the subsequent action of the members of the Legislature.

At the next session, joint resolutions were adopted, the preamble to which recites, that, “-Whereas the General Assembly of this State, at the last session of the same, duly submitted to the people of said State proposed amendments to the constitution : and whereas the people of this State, in the manner and form as provided by the constitution, have accepted the said amendments, which are in words and figures following.” Then follow all the amendments which were proposed at the preceding session, except the one proposing the change in the twenty-third section of the fourth article, which is entirely omitted ; and then the ratifying resolution is added, in these words: “Be it resolved, by the Senate, &c., two thirds of each House concurring, that the aforesaid amendments to the constitution, proposed as aforesaid, and accepted by the people as aforesaid, be ratified, and that the same, from and after the passage of this resolution, be and form a part of the constitution of the State of Alabama.”

This act is, in our opinion, legitimately susceptible of but one construction. The preamble recites, that the amendments which had been proposed at the previous session, had been accepted by the people; and had the resolution gone on to declare, that such amendments were ratified by two thirds of each House in the mode required by the constitution, it would have been sufficient, as we could not, upon the demurrer, have gone behind the resolution and inquired whether the amendments had been read the number of times required, and passed by yeas and nays. But the act purports to set out the resolutions which were proposed and accepted by the people, and the rule is, that the special governs the general. We know, it is true, that another amendment than those embodied in the act was proposed by the preceding Legislature; but we do not know, except so far as the act informs us, whether the people had accepted that amendment; and we are unable, upon any sound principle of construction, to arrive at this conclusion from the act itself. Our conclusion would rather be, that the people had accepted only those amendments which are set out in the act.

Again; we know of no rule of construction by which the word “aforesaid,” in the ratifying clause, can be referred to any other amendment than those which the resolution sets forth. It is the same as if the clause had enacted, that the amendments set forth in the preamble, “having been proposed as aforesaid, and accepted by the people as aforesaid, are hereby ratified”; and, it is obvious, that if such had been the plain language of the act, the ratification could have embraced only the amendments which "were particularly referred to.

The view we have taken we regard as conclusive of the case, and we make the decision with less reluctance, for the reason, that, on looking to the journals of the General Assembly, we find that the amendment which was omitted in the act last referred to, was not read in either House during the session at which it could have been ratified, and this omission, we are inclined to think, had it been properly brought to the notice of the court, would have been equally fatal to the amendment.

The change, from annual to biennial sessions, cannot affect the section we have considered. Both clauses in the constitution can stand together, and, although some inconvenience may result, if it be deemed necessary to convene a special session of the Legislature for the election of the Treasurer and Comptroller, a point upon which we express no opinion, this inconvenience must be submitted to. We cannot establish an unsafe precedent upon a question of constitutional law, to escape from it.

Our views upon this question render it unnecessary to decide any other presented upon the record.

Judgment affirmed.