In Re Opinion of the Justices

21 So. 2d 238 | Ala. | 1945

Questions propounded by the Governor to the Justices of the Supreme Court under Code 1940, Title 13, § 34.

Questions answered.

"To The Chief Justice and Associate Justices of The Supreme Court of Alabama.

"Gentlemen:

"Under the provisions of Title 13, Section 34, Code of Alabama 1940, I request your opinion on an important constitutional question relating to the constitutionality of Act No. 356, H. 797, approved June 30, 1943, Local Acts 1943,

"This Act seeks to create and establish a board of revenue for Jackson County, Alabama, and under the provisions thereof, I, as Governor of the State of Alabama have the power to appoint the first chairman of said board of revenue of Jackson County.

"Serious doubt has been raised as to the constitutionality of this Act in view of Sections 106 and 45 of the Constitution of 1901, I therefore propound to you the following questions:

"1. Is this Act constitutional in the light of Section 106 of the Constitution of 1901?

"2. Is this Act violative of Section 45 of the Constitution of 1901?

"3. In the event it is your opinion that this Act is constitutional what are my constitutional duties under the provisions of said Act?

"For your convenience I herewith enclose notice of intention to apply for introduction of this bill as the same appeared in the Jackson County Sentinel, a weekly newspaper of general circulation published at Scottsboro, Jackson County, Alabama, on May 18, 1943, May 25, 1943, June 1, 1943, and June 8, 1943, respectively. This notice of intention to apply for introduction of said bill had attached thereto the certificate of Hon. Sibyl Pool, Secretary of State, certifying that the same is a true and correct copy of the notice as it appeared in Volume 4, House Journal of Alabama for the 1943 Regular Session of the Legislature.

"Respectfully submitted,

"Chauncey Sparks, "Governor."

"Notice and Proof H. 797 "Notice of Local Legislation "Notice is hereby given that a bill will be introduced at the present session of the Legislature of the State of Alabama to create and establish a Board of Revenue in and for Jackson County, Alabama, to be composed of five members, one of whom shall be chairman of said Board; to fix the qualifications of the Chairman and other members of the said Board; to abolish the Court of County Commissioners of Jackson County, Alabama; to designate the manner of constituting, selecting and appointing the first board to hold office hereunder, and providing for the appointment of the first chairman of the said Board by the Governor; to fix the term of office of the first board holding office hereunder, and their successors in office, to provide for filling vacancies therein, to require the members elected, chosen or appointed hereunder to take the oath of office and give bond; to define the powers and duties of the said Board; to fix the compensation of the members thereof; to confer upon said Board all the jurisdiction, powers and authority that is now or may hereafter be granted by law to courts of County Commissioners, Boards of Revenue or other governing bodies of like name and authority in this state not in conflict or antagonistic to the jurisdiction, powers and authority conferred by this Act; to authorize the said Board of Revenue to employ a clerk and a supervisor of roads and bridges for the County and to fix the duties, qualifications and compensation of such clerk and supervisor of roads and bridges, providing the manner of their payment, and to repeal all laws and parts of laws in conflict with the provisions of this Act; particularly and expressly repealing any and all laws constituting the Judge of Probate as principal Judge and member of the Court of County Commissioners, granting judicial power, requiring reports from courts of said county, providing meeting place and time of meeting of said Board, regulating all purchases made by said Board and the expenditure of County funds to provide for the election of all members of said Board at the expiration of the term of office of the first board constituted hereunder."

Honorable Chauncey Sparks, Governor of Alabama, State Capitol, Montgomery, Alabama.

Dear Sir:

We acknowledge receipt of your communication of March 8th, in which you request our opinion on constitutional questions relating to Act No. 356, H. 797, approved June 30, 1943, Local Acts, 1943, page 199. In reply we wish to advise that in our opinion, on the authority of State, on Inf. of Murphy v. Brooks et al., 241 Ala. 55, 1 So.2d 370, cited with approval by this court in State, on Inf. of Murphy v. Johnson, 243 Ala. 114,8 So.2d 890, the act inquired about is unconstitutional because it is in violation of section 106 of the Constitution. That part of section 106, Constitution of 1901, which is pertinent to your inquiry reads as follows: "No * * * local law shall be passed * * * unless notice of the intention to apply therefor shall have been published, without cost to the state, in the county or counties where the matter or thing to be affected may be situated, which notice shall state the substance of the proposed law * * *."

The notice published in connection with the act to which you refer merely states that the proposed statute will establish a Board of Revenue to be composed of five members, designates the manner of appointing the first Board and provides for the election of such members at the expiration of the term of office of the first Board. The act itself provides that such members shall be elected from the county at large. Since 1879 (Acts of Alabama, 1878-1879, page 208), the members of the Commissioners Court of Jackson County have been elected from four districts of the county, one commissioner for each district. We consider that the failure of the published notice to give the express information that the members of the Board of Revenue were to be elected from the county at large was an omission of a matter of substance. There was a material change in the manner in which Jackson County would elect its governing body.

It is further noted that the proposed act fixes the compensation of the members of the Board of Revenue. The act itself provides a salary of $200 per month for the chairman of the Board and $7.50 per day, not in excess of $75 per month, for the associate members thereof. Under Local Acts of Alabama, 1936-1937, page 72, each member of the Court of County Commissioners receives a salary of $85 per month, with the exception of the Judge of Probate, who serves as ex officio chairman without pay. We consider that this change which may result in increase in salaries is a matter of substance and that information thereof should have been given in the published notice. The published notice in this respect gives no indication of the substance of the act. We quote from the opinion of this court in State, on Inf. of Murphy v. Brooks et al., supra, as follows: "No indication is given by the notice that the salaries of the respective members of the board are to be doubled, with compensation in part out of the road and bridge fund and the gasoline fund as well as the general fund, and their method of election changed as well as to some change in the method of filling vacancies; * * *."

See Opinion of the Attorney General, Quarterly Reports Attorney General, Vol. 32, p. 84.

There appear to be other provisions of the act which were omitted from the notice, including designation of the fund from which salaries were to be paid, the granting of authority to the Board to compromise the outstanding debts of Jackson County, register warrants and pledge the credit of the county to raise money to discharge the same.

In view of what we have said, we assume that it is not necessary to answer other questions contained in your inquiry of the 8th inst.

Respectfully submitted,

LUCIEN D. GARDNER, Chief Justice.

WILLIAM H. THOMAS,

JOEL B. BROWN,

ARTHUR B. FOSTER,

J. ED. LIVINGSTON,

DAVIS F. STAKELY,

ROBERT T. SIMPSON, Associate Justices.