89 So. 593 | Ala. | 1921
Lead Opinion
By direction of the court, the opinion was prepared by McCLELLAN, J. The state, on the relation of Fox, brings this proceeding in quo warranto to determine Hooper's (appellant's) eligibility for appointment by the Governor to hold and serve in the office of jury commissioner for Marshall county (Acts 1909, p. 305 et seq.). The court below overruled demurrer to the petition and awarded relief, deciding that Hooper was ineligible for the office mentioned.
Section 2 of the act approved August 31, 1909 (Acts, p. 306) provides that —
"Every person appointed to the office of jury commissioner shall be, at the time of his appointment, a qualified elector * * * of the county."
The ground of Hooper's averred ineligibility to this office is that he had not paid poll taxes for the years "1918 to 1920, inclusive," which was necessary to his qualification as an elector at the time of his appointment (Graves v. Eubank,
"Sec. 194 1/2. (a) The payment of the poll tax mentioned in the Constitution of Alabama shall not be required of any person who served in the military or naval service of the United States for a period of not less than four months between January 1, 1917, and November 11, 1918, and who has been or who may be honorably discharged from said service and who was a qualified elector, except as to payment of poll taxes, at the time he entered said service, or who has since become such qualified elector, except as to payment of poll taxes. Any such person is exempted from the payment of all poll taxes until September 30, 1923.
"(b) Certificates of exemption from payment of such poll taxes shall be issued to persons entitled thereto under regulations prescribed by the Governor." See Laws 1919, p. 724.
The petition asserts that the "Soldiers and Sailors Poll Tax Exemption Amendment" never became a part of the Constitution of Alabama, because the Constitution (section 284) required the Legislature, as an entity, to appoint the day on which the election upon proposed amendments should be held, and the Legislature, in violation of the constitutional mandate, undertook, through section 2 of the act proposing this amendment, to delegate or remit the discharge of this constitutionally imposed duty to the Governor of Alabama. The court below held that the amendment never became a part of the Constitution, and so for the reason averred in the petition. This decision was correct under the apt authority of Johnson v. Craft,
This recital of the exhaustive character of the consideration and reconsideration accorded the same question in Johnson v. Craft, supra, is made in view of the contention in the printed brief filed for this appellant that a new factor, essential to a sound construction or interpretation of section 284 of the Constitution, is presented on this appeal — a factor that, it is asserted, was not presented or considered on the appeal of Johnson v. Craft. Referring to section 284 of the Constitution, the suggestion is that where an election on a proposed amendment to the Constitution is "held upon the next general election" day, such an election would be held on "a day appointed by the Constitution itself"; this concrete statement being resultant from the avowed view that section 284 itself alternatively appoints the next general election (occurring not within three months after adjournment, we interlard out of deference to another limitary provision of section 284) as the day for election on a proposed amendment to the Constitution. In terms, section 284 refutes the basis for and the result of the interpretation upon which the stated proposition rests. It is therein provided that the Legislature (as an entity, not in its lawmaking capacity — Johnson v. Craft) shall appoint the day on which the election shall be held, and the Constitution of 1901 nowhere contains a provision itself appointing a day for such election, either on a day coincident with the "next general election" or otherwise. The preceding Constitution of 1875, superseded and materially changed by the Constitution of 1901, did, in section 1 of article 17, require elections on proposed amendments to be held "at the next general election which shall be held for Representatives." Johnson v. Craft, supra. The present Constitution annulled that provision of the Constitution of 1875, and expressly placed upon the Legislature, as a distinct entity, the unavoidable, nondelegable duty to appoint the day for such election, either a day coincident with the next general election (occurring "not less than three months after the final adjournment" of that session) or "another day" therefor. So far as elections (other than those on proposed amendments) are concerned, section 190 of the Constitution of 1901, instead of itself defining or appointing the time therefor, expressly commits that service to the Legislature in its lawmaking capacity in these terms:
"The 'Legislature shall pass laws * * * to regulate and govern elections.' " Johnson v. Craft, supra.
As an abstract proposition, the stated insistence cannot be accepted. In the present instance the "Soldiers and Sailors Poll Tax Exemption Amendment" was not voted upon on a general election day, but on the 29th day of December, 1919 — a day chosen by the Governor to whom the Legislature had, in violation of the organic law, undertaken to delegate that authority in these words, "It shall be the duty of the Governor to fix the date of said election * * *" — terms identical with those employed in section 4 of the act proposing the submission of the "Road Bond Amendment," quoted in the statement of the case of Johnson v. Craft.
It is here contended, as it was in support of the application for rehearing in Johnson v. Craft, that it is now too late to invoke judicial inquiry into the validity of this amendment — this because, it is asserted, all departments of the state have recognized this amendment as a part of the Constitution of this state. In response to the application for rehearing in Johnson v. Craft, the like contention was considered and adversely decided. The reasons and authority there set down apply with like concluding effect to the cause now under consideration. The decision of this court in Cornelius v. Pruet.
It is suggested in brief for appellant that now to hold invalid the "Soldiers and Sailors Poll Tax Exemption Amendment," after persons within its exemption have voted in intervening elections in reliance upon the validity of the poll tax exemption thereby contemplated, would subject those so voting to criminal prosecution or penalty for "illegal voting." This suggestion is wholly ill founded. Such voters did not offend the statutes against "knowingly" casting illegal votes, the invalidity of the proposed amendment having been adjudged subsequent to the casting of their votes.
The judgment was well rendered, the amendment in question never having become a part of the Constitution of this state; and hence the appellant was not exempt from the voluntary payment of poll taxes as a condition precedent to his qualification as an elector. Graves v. Eubank,
The judgment is affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN, SAYRE, SOMERVILLE, and MILLER, JJ., concur.
Concurrence Opinion
Upon the ground of stare decisis; the question determinative of this appeal being the same as that decided in Johnson v. Craft,
Dissenting Opinion
The right of holding office by Mr. A. B. Hooper, Jr., a jury commissioner of Marshall county, is challenged by quo warranto. Code, § 5453.
Appellant Hooper was appointed by the Governor as one of the jury commissioners in said county, and his right to hold office is questioned on the ground that he was not a qualified elector, in that he did not pay poll tax as required by statute. Appellant's excuse for not paying poll tax for the years 1918 to 1920, inclusive, was that he served in the military forces of the United States from the 15th day of May, 1918, until the 25th day of June, 1919, and was honorably discharged from such service; that he was not required by law to pay poll tax for said years, being exempt by the amendment to the Constitution of Alabama, section 194 1/2, exempting soldiers and sailors. Appellee contends that this alleged amendment never became a part of the Constitution, for the reason, among others, that the Legislature delegated to the Governor the duty to appoint a day upon which the election on such amendment would be held, and which was done by the Governor; wherefore, appellee says that the proposed amendment was voted upon and received an affirmative vote at the election so called, but was never legally submitted or adopted as provided by the Constitution.
In my dissenting opinion in Johnson v. Craft,
The Constitution contains the provision that the Legislature shall order an election, etc., to be held (section 284) "either at the general election next succeeding" or upon "another day appointed by the Legislature," and that notice shall be given for the time required "next preceding the day appointed for such election"; and that "on the day so appointed an election shall be held" for the vote of the qualified electors of the state upon the proposed amendments. It is noted *375 that the words "day appointed" appears three times in the section. The able analysis of the use of this word in the Constitution is made by counsel for appellant as follows:
"If the election is held upon the next general election, it cannot be doubted that it is held upon a day appointed by the Constitution itself. This is self-evident and beyond argument, but it is rendered absolutely certain by the designation by the Constitution itself of the day of the 'next general election', as a day appointed. This appears clearly from the succeeding portions of this section. The notice provided for by publication for eight successive weeks, applies, of course, to elections held at the time of general elections as well as to special elections. This notice, in the language of the Constitution, must be published for 'eight successive weeks next preceding the day appointed for such election.' And, since the requirement applies to elections held at the general election, the designation of such day as 'the day appointed,' is a declaration by the Constitution that its designation of the general election as a day on which an election on said proposed amendment may be held, is the appointment by it of such day. The Constitution proceeds in the next sentence in this section to say: 'On the day so appointed an election shall be held,' etc., thus clearly and explicitly and in terms referring to elections held on the day of a general election, as elections held on a day appointed, and since such elections, if held on the day of a general election are necessarily held under the direction of the Constitution exclusively, they are, if held on a day appointed, held on a day appointed by the Constitution."
From this definition in the Constitution of a day "appointed," as thrice used in section 284, it must follow that the Legislature "did appoint an exact date for holding" the election on the proposed amendment within the time specified by and in the Constitution, whether the date be that of the general election next succeeding the session of the Legislature or upon another day appointed by the Legislature.
In my judgment, it cannot be said that the words "day appointed" in said section — with reference to the duty of the Legislature in the "alternative performance of the duty" of appointment — were used with a "more restricted meaning" as relating to the one clause than in the other: (1) "Order an election * * * to be held * * * at the general election next succeeding * * * or upon another day appointed by the Legislature," and (2) "on the day so appointed" an election shall be held. The word "appointed" as used in that section of the Constitution must be given the same meaning, it not appearing from the context to have had a different meaning. Mayor v. Klein,
When, therefore, by section 2 of the said act proposing the amendment, the Governor was clad with the administrative function of indicating the calendar day on which the election should be held, within constitutional limits, and in further prescription contained in section 3 of the act that "at said election, to be held as herein provided, the qualified electors shall vote upon the said amendment," the Legislature did appoint a day for holding the election, in strict conformance with constitutional requirements. Johnson v. Craft,
I am of the opinion that the judgment of the circuit court excluding appellant from office was laid in error, and that the judgment of ouster should be set aside and judgment rendered restoring him to office.
Mr. Justice GARDNER concurs in the foregoing observations and further urges the constitutional adoption of the amendment, in which I concur.
Dissenting Opinion
The result of the decision of the court in this case is to strike down what is known as the Soldiers and Sailors Poll Tax Amendment, and the conclusion is rested upon the holding of the majority in Johnson v. Craft,
It is conceded, of course, that whether or not an amendment to the Constitution has been constitutionally proposed and adopted as a part of that instrument is a judicial question, and therefore properly for the courts to determine. Nevertheless, it is a perfectly sound rule of law, well established by the authorities, that there does come a time when the courts may decline to consider whether or not a given amendment to the Constitution was in its inception strictly and literally proposed or adopted in the manner provided by the Constitution, and that such a time arrives when the state as a government, and the people as a body politic, have functioned, accepted, and operated under such amendment as a part of the Constitution. This principle was given recognition by the Supreme Court of Minnesota in the case of Secombe v. Kittelson,
"This constitutional amendment, proposed and submitted by the Legislature, was adopted by the people as a part of the fundamental law of the state, and subsequently recognized and acted upon as such by every department of the state government. As ultimate sovereignty is in the people, from whom all legitimate civil authority springs, and inasmuch as in the inception of all political organizations it is this original and supreme will of the people which organizes civil government, a court has no right to inquire too technically into any mere irregularities in the manner of proposing, and submitting to the people that which they have solemnly adopted, and subsequently recognized and acted upon, as part of the fundamental law of the state. We doubt whether a precedent can be found in the books for the right of a court to declare void a Constitution, or amendment to a Constitution, upon any such ground."
This principle was also recognized in Miller v. Johnson,
Indeed, as I read the majority opinion in Johnson v. Craft, supra, it concedes that there are authorities to this effect, but indicates the language of the court in Collier v. Frierson,
"But this only brings us to the real question in this case: Is a proposition to amend the Constitution in the nature of a criminal proceeding, in which the opponents of change stand as defendants in a criminal action, entitled to avail themselves of any technical error, or mere verbal mistake; or, is it rather a civil proceeding, in which those omissions and errors which work no wrong to substantial rights are to be disregarded? Unhesitatingly, we affirm the latter. The central idea of Kansas law, as of Kansas history, is that substance of right is grander and more potent than methods and forms. The two important, vital elements in any constitutional amendment, are, the assent of two-thirds of the Legislature, and a majority of the popular vote. Beyond these, other provisions are mere machinery and forms. They may not be disregarded, because, by them, certainty as to these essentials is secured. But they are not themselves the essentials."
Whether the Legislature, or the Governor as the delegated authority of the Legislature, appointed the day for the election cannot be said to present a question of substance, but only of form or procedure, for it is apparent substantial rights have been in no manner affected. An entirely appropriate day was appointed and the election duly held. As disclosed in the opinion of Justice Brewer, in so fundamental a matter as an amendment by the people of their Constitution, form or procedure should not be stressed to the exclusion of substance, for as he so well states, "substance of right is grander and more potent than methods and forms."
This principle here contended for is supported by authority as well as sound reason and common sense, and if it is ever to be given recognition in this state, it appears to the writer that the instant case calls for its application. This amendment was submitted to a vote of the people and ratified by a large majority. It was proclaimed by the Governor as a part of the Constitution. It is common knowledge that the boards of registrars throughout the state have registered thousands of electors under its provisions. The Legislative Department expressly recognized it in Acts Special Session 1920, p. 2, and while the Judicial Department did not pass upon the constitutional question here involved, yet by the decision of this court in Cornelius v. Pruet,
The question here discussed was brought to the attention of the court in Johnson v. Craft, supra, for the first time upon application for rehearing and was considered by the writer in expressing his dissenting views from the holding of the majority, in which dissent reference was made to the amendment now under review, and the effect the decision in that case would have thereon, and, as pertinent here, used the following language:
"By this amendment thousands who served in the Army and Navy during the period of the World War, and who were honorably discharged from such service, and qualified electors, except for the payment of poll tax, were exempted from its payment, and this amendment was proclaimed as a part of the organic law, and the Legislature of this state subsequently ratified and adopted and put it into operation, and the people of the state have accepted and acted upon it as a part of the Constitution, and these men exercise the right of franchise in reliance thereon. This amendment was brought before this court in Cornelius v. Pruet,
The opinion of the majority in the instant case, as I understand it, in practical effect repudiates this doctrine. It is, I think, well supported by the authorities, and I find none to the contrary. The case of Collier v. Frierson, cited by the court, treated no question of mere irregularity, and this principle was not then presented or in any manner considered, and as pointed out above in no wise conflicts with this view.
After a more careful study and consideration of the question, I am still more firmly persuaded of the correctness of the foregoing conclusion, and of the soundness of the principle here insisted upon as well as its direct application to this amendment.
I forego further discussion, and respectfully dissent.
THOMAS, J., concurs.
