42 So. 118 | Ala. | 1905
The issue in this case involves the validity of Ordinance No. 390 of the constitutional convention, providing for an additional court house in the counties of St. Olair and Shelby, respectively, as well as Local Acts 1903, pp. 28 and 539. The constitutional convention assembled under and by virtue of the act of the Legislature of 1901 (Acts 1900-01, p. 224) entitled “An act to provide for the holding of a convention, to revise and amend the Constitution of the State.” Section 22 of said act provides for the holding of an election for the ratification or rejection of the Constituoin. The ordinance in question pertains is no way to an amendment or revision of the Constitution, and it was beyond the power of the convention to pass this ordinance, and it could not become binding or of legal force without having been submitted to and ratified by the people.— Plowman v. Thornton, 52 Ala. 559 ; 6 Am. & Eng. Ency. Law (2d Ed.) pp. 896-898 ; Jameson on Constitutional Conventions, pp. 98, 414, 424, 426 and 493 ; Cooley’s Constitutional Limitations (7th Ed.) p. 61 ; McDaniel’s Case, 2 Hill, Law (S. C.) 270 ; Quinlan v. Houston, (Tex. Sup.) 34 S. W. 738 ; Wells v. Bain, 15 Am. Rep. 563 ; Wood’s Appeal, 75 Pa. 59 ; Goodrich v. Moore, (Minn.) 72 Am. Dec. 78 ; 8 Cyc. p. 723, note.
Jameson, in his work on Constitutional Convention, says: “Now, in the light of these principles, is the exercise by a convention of legislative or other governmental powers, in addition to those clearly belonging to it, to be considered as within its competence as a constitutional body? Is such an assumption of power one which threatens no danger to the commonwealth? By the theory of those who accord to its such powers, as soon as the convention is assembled, the control of the existing government over it is at an end; the Constitution lies torn in fragments under its feet; and, while the work of its instauration is in progress, that body alone constitutes the state, gathered into its single hands the reins ordinarily held by the four great systems of agencies constituting the government, to whose functions it succeeds. If this be so, what, but its own sense of justice, is to restrain such a body from running riot, as did the Thirty Tyrants at Athens? The jurists of the Illinois
We quote from the Supreme Court of Pennsylvania {Wood’s Appeal, 75 Pa. 59) : “There is no subject more momentous or deeply interesting to the people of this state than an assumption of absolute power by their servants. The claim of a mere body of deputies to exercise all their sovereignty, absolutely, instantly, and without ratification, is so full of peril to a free people, living under their own instituted government and a well matured Bill of Rights, the bulwark and security of their liberties, that they will pause before they will allow the
In McDaniel's Case, 2 Hill, Law, 270, the Supreme Court of South Carolina said: “The sole difficulty seems to me to have1 arisen from . confounding together the authority attributed by the convention to the people, and Avitlx that of tlu1 convention. Certainly the coimmtion A\ras not the people for any other purpose than that for Avhich the people elected and delegated them. An argument was
Judge Cooley, in his work on Constitutional Limitations (7th Ed., p. 61, § 4), says: “In accordance with
The supreme court judges of Massachusetts, in 6 Cush. 574, 575, in discussing this question, said: “Upon the first question, considering that the constitution has vested no authority in the Legislature;, in its ordinary action, to provide by law for the submitting to the people the expediency of calling a convention of delegates for the purpose of revising or altering the constitution of the commonwealth, it is difficult to give an opinion upon the question, what would he the power of such a convention, if called? If, however, the people should, by the terms of their votes, decide to call a. convention of delegates to consider tlie expediency of altering the constitution in some particular part thereof, we are of opinion that such delegates, would derive their whole authority and commission from such vote; and upon the general principles governing the delegation of power and authority they would have' no right, under such vote, to act upon ami propose amendments in other parts of the constitution not so specified.”
It is contended that, if the adoption of the ordinance was beyond the authority of the convention, it is nevertheless Adalid and binding, because the constitution Avas submitted to- and was ratified by the people. The authorities are almost uniform that the ratification of an unauthorized act by the people (and the people are tin-principal in this instance) renders the act Amlid and binding. We cannot assume, hoAvever, that this ordinance has been ratified. It is true the convention provided that the ordinance should become a. Iuav only upon a ratification of the constitution, and that the constitution Avas ratified. But can it be contended that such a
We have examined the authorities relied upon by counsel for the respondent, but find them no great impediment in reaching the foregoing conclusion, which is fortified by a great weight of authority. What was said as
The ordinance in the case of Plowman v. Thornton, 52 Ala. 567, was upheld on the theory that it was essen
The ordinance locating this additional courthouse being void, Acts 1903, p. 28, to carry into effect the provisions thereof, being local, and not confined in its purpose solely to fixing the time for the holding of courts, is repugnant to section 106 of the Constitution, because no notice was given of the intention to apply therefor, and must go down with the ordinance. Acts 1903, p. 539, having for its sole purpose the fixing of the time of holding court in the Seventh circuit, while a local law, is ex
It is doubtless true that the county has expended a large sum for a courthouse and jail, and that a failure to hold a term of court at Pell City may put many of the. people to no little inconvenience. These facts should be considered by the Legislature, which is the only department of the government with authority to establish two courthouses in one county, and then only after complying with the constitutional provisions. Considerations of need and expediency should not and will not deter the courts of the land from annulling an ordinance that is so illegal and unwarranted, and the upholding of, which would establish a precedent revolutionary in its character, and which would be a menace to coming gem erations in the enjoyment of rights guarantee^ under a republican form of government.
The relief sought is granted, and. the writ is made peremptory.
ON REHEARING.
We do not desire to prolong to a great extent a discussion of this question, as we think the conclusion heretofore reached by a majority of the court is not only sustained by a great weight of authority, but is the only safe and logical adjudication of this most important question;1 and we will reply as briefly as possible to the argument of counsel for a rehearing. All political power is inherent in the people, and all free governments are founded on their authority and instituted for their benefit. Section 2, Art. 1, of the Declaration of Rights (Const. 1901). A convention has delegated, and not inherent, rights. The authority dele
Counsel cite authorities not cited upon the original hearing and not discussed in the oponion, contending .that they justify the claim that the convention of 1901 had the power to legislate. Many of these authorities relate to ordinances that met with the same fate as the one in the case of State v. Keith, 63 N. C. 140, and which fell by the wayside before it became necessary to determine the authority of the convention. Some of them, however, recognized the authority of the convention to adopt ordinances, hut all of which seem to have been general in' operation, and not local, as is the one in question. These authorities are in conflict with the expression of Judge Brtckell in the Plowman Case, 52 Ala. 567, because said expression referred to the power of the convention of 1867, but are not necessarily in conflict with the opinion in this casé. For, while we do not hold that the conventions of 1865 and 1867 had the authority to legislate, we do think that they were held at a time and under conditions that would excuse a thing done by them, which should not be tolerated if done by the convention of 1901, when conditions were normal and our government had become stable and conservative — when we had a government by the people, free from the control of federal authority, and were not influenced or dominated by a standing army. We have discussed the exigencies of the times, which doubtless justified-the ordinance of 1865, especially the one that was upheld in the Washington Case, 69 Ala. 281, and we think the convention of 1867 was held at a time and under conditions less calculated to make it a test or guidance to subsequent conventions than the former. While a political and not a judicial question, it is a matter of history and common knowledge that the Constitution framed by the convention of 1867 was rejected by the people, but was
As is contended by counsel, there has been some “wobbling” by this court in reference to the ordinances of 1865 and 1867; but Justice Brickell sounded the note of warning in the Plowman Case, which was heeded by the Legislature in passing, the act of 1871 calling the convention of 1875, which said convention framed the organic laws under which we lived for more than a quarter of a century, and followed not in the footsteps of the conventions of 1865 and 1867. We thoroughly agree with counsel for respondent that the “act of 1901 did not require Ordinance No. 390 to be submitted to the people.” The act so clearly defined the purpose for which ■ the convention should be held that we have every reason to conclude that the Legislature did not, for a moment, anticipate that the convention would undertake to indulge in local legislation relating to Shelby and St. Glair counties. Much of the brief is devoted to a criticism of some of the authorities cited in support of the conclusion reached in the original opinion, and Mr. Jameson comes in for a full share. While we think the law as set out by Mr. Jameson on this subject is sound, we ape not indebted to him solely for enlightenment on the subject. Mr. Jameson was guided by the Supreme Court of South Carolina, and by the judges of the Supreme Court of Massachusetts, who had considered the question years before his work was written and published, and this doctrine was subsequently enunciated by the Supreme. Courts of Pennsylvania, Texas, and Arkansas. It is true that Mr. Jameson was criticised by the German Avriter, Prof. Yon Holst, but which Mr. Jameson himself ansAvered most effectively. We are not called upon in this case to express a preference between these two men, as this question has been adjudicated by the courts of the land. But, were conditions such that we had to be guided exclusively ’by the views of the one or the other, we Avould unhesitatingly accept the tutelage of Mr. Jameson. He was a lawyer of distinction, a judge of the superior court of Chicago, a citizen of a free country, and one who had experience in the practical operation of
We cannot recede from the conclusion heretofore reached as to the acts on the subject passed by «the Legislature of 1903, and are unable to say that a void ordinance can be made valid by a legislative act which is also void. “Two wrongs never make a right.”
The rehearing is denied.