29 So. 2d 10 | Ala. | 1947
Lead Opinion
Response to Questions propounded by House of Representatives.
Questions propounded by the House of Representatives to the Justices of the Supreme Court under Code 1940, Title 13, § 34.
Questions answered.
House Resolution No. 9 by Snodgrass
To request an advisory opinion of the Supreme Court of Alabama relative to the constitutionality of a resolution pending before the Legislature which is a proposal to create legislative interim committees.
Whereas The Legislature of Alabama has pending before it at its organizational session a proposal to create by joint resolution six interim committees of the Legislature, and
Whereas an amendment to the Constitution of Alabama, ratified November 5, 1946, provides:
"The Legislature shall convene on the second Tuesday in January next succeeding their election and shall remain in session for not longer than ten consecutive calendar days. No business can be transacted at such sessions except the organization of the Legislature, the election of officers, the appointment of standing committees of the Senate and the House of Representatives for the ensuing four years, which election and appointment may, however, also be made at such other times as may be necessary, the opening and publication of the returns and the ascertainment and declaration of the results of the election for Governor, Lieutenant-Governor, Attorney-General, State Auditor, Secretary of State, State Treasurer, Superintendent of Education, and Commissioner of Agriculture and Industries, the election of such officers in the event of a tie vote, the determination of contested elections for such offices, the judging of the election returns and qualification of the members of the Legislature and the inauguration of the Governor and the other elected State officers whose terms of office are concurrent with that of the Governor."
And Whereas Section 34 of Title 13 of the 1940 Code provides that either house of the Legislature may obtain the written opinion of the Justices of the Supreme Court of Alabama on any important constitutional question, therefore Be It Resolved by the House of Representatives:
1. The Justices of the Supreme Court are requested to give their written opinion on the following questions:
A.) Is the Legislature's power of creating legislative committees restricted in any manner by the provisions of the constitutional amendment relating to sessions of the Legislature that was ratified November 5, 1946.
B.) Can the Legislature legally provide for the creation of legislative interim committees by a joint resolution passed at its organizational session. *592
The House Joint Resolution pending before the Legislature is as follows:
H.J.R.-8 __________ By Mr. Snodgrass
Be It Resolved by the House of Representatives, the Senate Concurring:
1. That there are hereby created an Interim Committee on Finance and Taxation, an Interim Committee on Education, an Interim Committee on Highways, an Interim Committee on Health and Public Welfare, an Interim Committee on Agriculture, and an Interim Committee on Judiciary to serve during the interim between this organizational session of the Legislature and the Regular Session of the Legislature to be held in May, 1947. The members of each Interim Committee shall consist of three members from the Senate to be appointed by the presiding officer of the Senate and five members from the House of Representatives to be appointed by the Speaker of the House. The Lieutenant Governor of Alabama and the Speaker of the House of Representatives shall be ex-officio members of each committee and shall receive the compensation of a member of a committee. When the members of said interim committees shall have been named as herein provided, the members of each of said committees shall select a chairman and vice-chairman thereof. The members of said committees shall give all the time necessary to carrying out the duties of the committees herein provided for. Each interim committee hereby created shall commence the performance of its duties as soon after this organizational session of the Legislature as may be practicable.
2. The Committee on Finance and Taxation is authorized and it shall be its duty to make a careful study of the financial conditions of the State and the laws having to do with taxation. The Committee on Education is authorized and it shall be its duty to make a careful and proper study of the educational laws and needs of Alabama. The Committee on Highways is authorized and it shall be its duty to make a careful and proper study of the highway laws of the State and the needs of Alabama in connection with the highways. The Committee on Judiciary is authorized and it shall be its duty to make a careful and proper study of the judicial system, laws and rules of the courts of the State, and other needs of Alabama in this regard. The Committee on Health and Public Welfare is authorized and it shall be its duty to make a proper and careful study of the health laws of the State and the needs of Alabama and make a careful and proper study of the welfare laws and needs of Alabama. The Committee on Agriculture is authorized and it shall be its duty to make a careful and proper study of the agricultural laws and needs of Alabama. Each committee shall report its findings and recommendations to the Legislature when it reconvenes in May, 1947.
3. The Chairman of each committee, created under this joint resolution, shall be empowered to employ one clerk who shall serve the committee presided over by such chairman, and such clerk shall be paid as provided by Section 13, Title 32, of Code of 1940.
4. The compensation and expenses of the members of said committees shall be the compensation and expenses now provided by law under Section 13, Title 32, Code of 1940. The committees hereby created may remain in session as long as necessary to perform their duties, but, in no event, shall they receive compensation for more than thirty days. The members of said committees shall also receive the same mileage they receive while attending the Legislature, but said members of the committee shall not receive mileage more than once. The chairman of each of said committees shall certify to the Comptroller what is due each member or clerk, who must draw his warrant therefor on the State Treasurer.
To the House of Representatives,
State Capitol.
Gentlemen:
We are in receipt of your inquiry upon the constitutionality of a joint resolution, now pending in the House of Representatives, concerning the appointment of interim committees during the present ten-day session, which convened pursuant to the constitutional amendment adopted November 5, 1946, and which has been duly proclaimed a part of the Constitution of the State of Alabama. For the Act proposing *593 the amendment — General Acts, Regular Session 1945, pp. 601-604.
This constitutional amendment made very substantial change in the amendment adopted pursuant to the proposed Act of March 29, 1939, — General Acts, Special Session, 1939, p. 11. But there was no change in that part of the 1939 amendment, so far as the ten-day session is concerned. It was readopted word for word.
In considering the power of the Legislature to appoint interim committees it should be borne in mind that legislative power is not derived either from State or Federal Constitution. These instruments are only limitations upon the power. Apart from limitations imposed by these fundamental charters of government, the power of the Legislature has no bounds and is as plenary as that of the British Parliament. Alabama State Federation of Labor v. McAdory,
True, the language is that "No business can be transacted at such sessions except the organization of the Legislature," and proceeds to detail some of the matters so authorized by way of exception. Among these mentioned matters is the appointment of standing committees of the Senate and of the House for the ensuing four years. It may be argued that the naming of standing committees in this exception should be construed as excluding any other character of committees, that is, interim committees as here being considered. We are persuaded, however, that this view is too narrow. This constitutional amendment clearly embraced other matters than those named in these exceptions. For illustration, surely during the ten-day session, and as a part of the organization, the Legislature could select pages, as well as doorkeepers; and no one could doubt for a moment the power of the Legislature also at this session to select clerks of committees. These are not matters mentioned in the amendment and, yet, very clearly are a part of the organization and do not constitute business in the meaning of this constitutional provision. This but serves to illustrate that the rule of "Express Mention and Implied Exclusion," referred to in the authorities is not a rigid rule of universal application, and should never be applied to obscure the meaning or thwart the purpose of a constitutional provision. 12 C.J. 707; 16 C.J.S. Constitutional Law, § 21. And, as observed by the Florida court in State ex rel. Moodie v. Bryan,
So, therefore, the mere fact that standing committees are so named should not, in our opinion, be given controlling effect. Of course, the Legislature has power to appoint recess committees at either special or regular session, 59 C.J. p. 95; and was recognized by the lawmaking body in the passage of what was Section 1523, Code of 1923, providing for the pay of recess committee members. Said Section 1523, Code of 1923, was significantly changed by providing pay for interim committees instead of recess committees, and further providing for their appointment by joint resolution, or by act of the two houses, as the Legislature deemed proper. Title 32, Section 13, Code 1940. And, the Legislature has also made express provision for the appropriation of funds for the expense of said legislative interim committees as may be created by said lawmaking body. Title 32, Section 14, Code of 1940.
As we have observed, the Legislature has plenary power except when limited by the Federal or State Constitution. So far, therefore, as this constitutional amendment seeks to restrict the Legislature in the appointment of interim committees it should be strictly construed. State v. Clements,
Speaking of the organization of corporations generally, the word "organization" has a well-understood meaning, that is, not only the election of officers, the subscription to the capital stock, the adoption of by-laws, but, also, such other steps as are necessary to endow the legal entity with the capacity to transact the legitimate business for which it was created. 30 Words Phrases, Perm.Ed., p. 284. So, we are persuaded here that the word "organization" should properly be interpreted as giving to the Legislature the power to appoint these committees which it deems necessary for the purpose of gathering information for the business of the Legislature when it reconvenes in its regular May session. Organization is in fact preparation for the transaction of business, and the appointment of these committees is an appropriate part of such preparation.
Perhaps the interim between the ten-day session and the regular session in May was for the purpose in one respect of giving to the Governor an opportunity to formulate his plans and recommendations, and making a study of the State's needs. But this same reasoning is applicable to the Legislature as well. The members of the lawmaking body should also have an opportunity to make investigation and to properly inform themselves upon the needs of the State. An interim committee does not legislate, it merely makes inquiry and obtains data so that it may properly report to the regular session their findings. This, in our opinion, is not doing business within the meaning of the constitutional provision above noted, but is merely in preparation to that end when the Legislature reconvenes in its regular session.
We are not persuaded, therefore, upon consideration of these matters and a careful reading of this constitutional amendment, that the appointment of interim committees would constitute a doing of business which is prohibited by said amendment.
We, therefore, answer your inquiry in the affirmative, that is, to the effect that the Legislature has the power to appoint interim committees as suggested in the resolution now pending.
Respectfully submitted,
GARDNER, Chief Justice,
FOSTER,
LIVINGSTON,
STAKELY, Associate Justices.
It is well settled in Alabama that the Legislature in the absence of constitutional restrictions has plenary power to appoint interim committees or to do anything essential in due organization and preparation for transacting legislative business, and that constitutional restrictions against such power are to be strictly construed. The amendment under consideration does not expressly prohibit the appointment of interim committees and to deny it the right is to write into the Constitution such restrictions by implication. This is contrary to the rule of strict construction. For this reason we concur in the result of the majority of the opinion but not all that is said therein.
BROWN,
SIMPSON, Associate Justices.
Dissenting Opinion
I regret that I am compelled to dissent from the opinion of the majority of the Justices. I cannot concur in the conclusion which they have reached, nor can I agree with the reasoning, as I understand it, which leads to that conclusion.
We are not here called upon to determine whether or not the appointment of interim committees by the Legislature at its organizational session is expedient or whether it would be for the best interest of the State of Alabama that such be done. I take it that our function is solely to decide whether under the existing organic law, such action legally can be taken.
I do not question the fact that the Legislature has the inherent power to appoint interim committees; but I do contend that they cannot exercise that power at this so-called organizational session. In my *595 judgment, the language of the amendment to the Constitution of 1901, which was adopted on November 5, 1946, and which has been subsequently proclaimed a part of the Constitution of this state, clearly denies the right of the Legislature to appoint interim committees at the session which convenes on the second Tuesday in January next succeeding their election and which session cannot last longer than ten consecutive calendar days. This session has been and will hereafter be referred to as the organizational session of the Legislature to distinguish it from the regular and special sessions. The amendment to the Constitution heretofore referred to expressly designates it as an organizational session.
The provisions of the said Constitutional amendment which are material to the present inquiry are as follows: "* * * The Legislature shall convene on the second Tuesday in January next succeeding their election and shall remain in session for not longer than ten consecutive calendar days. No business can be transacted at such sessions except the organization of the Legislature, the election of officers, the appointment of standing committees of the Senate and the House of Representatives for the ensuing four years, which election and appointment may, however, also be made at such other times as may be necessary, * * *."
It appears from a reading of the above quotation that it contains both restrictive and permissive provisions. The restrictive provision is that at this organizational session the Legislature shall transact no business. The permissive features of the amendment are the exceptions to the restrictive provision. It appears clear to me that if the Constitution says that the Legislature shall transact no business except certain types specifically enumerated that it is without power to transact any other type of business. The appointment of interim committees is not included within the permissive provisions; therefore, it appears to me that it is clear that such committees cannot be designated in this organizational session.
It seems to be without question that standing committees and interim committees are entirely different in their nature and in the type of duties which they perform. No contention is made that because the Legislature can appoint standing committees that they therefore can appoint interim committees.
What then, are the reasons set out in the majority opinion for the conclusion therein reached? As I understand the opinion the reasons are two: first, that the designation of an interim committee is not doing business and second, that if it is doing business, the authority for making such designation is found in the authority given the Legislature to organize.
As to the first reason, the majority opinion says as follows: "An interim committee does not legislate, it merely makes inquiry and obtains data so that it may properly report to the regular session their findings. This, in our opinion, is not doing business, within the meaning of the constitutional provision above noted, but is merely in preparation to that end when the Legislature reconvenes in its regular session." If I understand the above quotation correctly, it means that since the function of an interim committee is not legislative business, that the prohibition or restriction of the present constitutional amendment does not apply to its designation. I frankly cannot find any logic in such reasoning. The prohibition in the constitutional amendment is not against the business which might be subsequently performed by a committee, but is against the doing of business by the Legislature at its organizational session. How can it be said that the designation of an interim committee is not legislative business? It appears to me that if it is not legislative business the Legislature has no "business" taking up its time with their selection. Certain it is that the Legislature in proposing the amendment to the Constitution considered that the appointment of standing committees is business of the Legislature, for they included that function within the exceptions to the restrictive provision.
I most earnestly insist that the power given to the Legislature to organize at this session does not carry with it the power or authority to designate interim committees. *596 Perhaps it might be reasonable to say that the power to organize would include the power to appoint such committees if the amendment had not made express provision for other functions at such session, which clearly indicate to my mind that the words "organization of the Legislature" have a restricted and definite meaning, namely the seating of the members and election of presiding officers. See Cushing's "Law and Practice of Legislative Assemblies", pp. 106, 107, which authority I submit is much more applicable to the present inquiry than the citation contained in the majority opinion relating to organization of corporations. Obviously, the Legislature in submitting the amendment did not think that the words "organization of the Legislature" included the right to elect all of its officers, because specific provision is made for such elections. Likewise, the Legislature in submitting the constitutional amendment did not consider the words "organization of the Legislature" to include the appointment of standing committees because they make specific provision for the appointment of standing committees.
How, then, do the majority come to the conclusion that there is any authority whatsoever for the appointment of interim committees? They say: "This constitutional amendment clearly embraced other matters than those named in these exceptions. For illustration, surely during the ten-day session, and as a part of this organization, the Legislature could select pages, as well as doorkeepers; and no one could doubt for a moment the power of the Legislature also at this session to select clerks of committees. These are not matters mentioned in the amendment and, yet, very clearly are a part of the organization and do not constitute business in the meaning of this constitutional provision."
The above quoted portion of the majority opinion seems to be the basis for the conclusion that the words "organization of the Legislature" include the appointment of interim committees. In other words, the Legislature needs to appoint doorkeepers, pages and committee clerks and there is no specific mention made of such appointments. Therefore, the words "organization of the Legislature" must be construed as including the appointment of such officers.
I heartily agree that at this organizational session the Legislature has the power to appoint pages, doorkeepers and clerks. But I contend that in making such appointments they are doing business, but the authority to do such business is included in the authority to elect officers.
One of the leading works on the subject here under consideration is Cushing's "Law and Practice of Legislative Assemblies." For some reason this work is not referred to in a single instance in the majority opinion. To show that the power to elect officers includes the power to elect or appoint doorkeepers, clerks and pages, I quote from the outstanding work hereinabove mentioned: "The principal officers necessary to enable a legislative assembly to perform its various functions are three, namely; a presiding officer, called the speaker or president; a recording officer, denominated as the secretary or clerk; and an executive officer, sometimes known as the messenger, but more commonly, the sergeant-at-arms. Besides these, there are officers of a less essential character, such as the chaplain and printer, and others of a subordinate description, as the assistant clerks, engrossing clerks, committee clerks, stenographers, doorkeepers, and messengers of the sergeant-at-arms." See page 110. The majority opinion made reference to doorkeepers, clerks and pages. In the above quotation doorkeepers and clerks are specifically included within the general scope of officers of a legislative assembly, and I submit that messengers of the sergeant-at-arms perform substantially the same duties as do pages.
If the authority above referred to is correct — and I submit it has been considered as one of the leading works on this subject for many years — then the reasoning of the majority opinion falls of its own weight.
With a wave of the judicial hand, the majority opinion disposes of a rule many, many times applied by this court, namely that "where a statute enumerates the things upon which it is to operate, or forbids certain things, it is to be construed as excluding from its effect all those not expressly *597 mentioned." 59 C.J. 984. The only reason given as to why this time-honored rule, so often applied by this court, should not be applied here, is found in the following language: "We are persuaded, however, that this view is too narrow." Then in an effort to show why such view is too narrow, reference is made to the fact that such a construction would prevent the appointment of pages, doorkeepers, and clerks. I believe I have heretofore definitely pointed out the fallacy of this argument, as they are provided for in the authority given to elect officers.
It is interesting to note that the power of authority is not given to appoint committees in general. Only a specific type of committee is to be appointed, namely, "standing" committees. How can we disregard the use of the word "standing" except by saying that in proposing the amendment the Legislature used language which they did not intend to use. Such a conclusion ignores another common rule of statutory construction, that in construing a statute effect must be given, if possible, to the whole statute and every part thereof. 59 C.J. 995.
It has been suggested, although the majority opinion does not seem to deal with the question, that since the Legislature has the inherent power to appoint interim committees and since the constitutional amendment with which we are here concerned does not expressly say it could not appoint interim committees, that it follows that such can be done. I submit this reasoning is entirely erroneous. As before pointed out, the constitutional amendment prohibits the doing of any business by the Legislature and then in its permissive features gives them the authority to perform those functions therein specifically enumerated. Can it reasonably be argued that since the constitutional amendment does not say that an appropriation bill cannot be passed at this organizational session that such a bill could be passed?
It has also been suggested that committee members are officers of the Legislature and that, therefore, under the authority to elect officers the Legislature has the authority to elect to appoint any committee which it sees fit. I cannot agree with this reasoning. The fundamental question with which we are here concerned is the intention of the Legislature in proposing the constitutional amendment here involved. If it had intended for the words "election of officers" to include the appointment or designation of any committee, they most certainly would not have used the words "appointment of standing committees." If a member of an interim committee is an officer, certainly a member of a standing committee would be considered an officer. Therefore, it appears that in using the words "election of officers" the Legislature did not intend to authorize the designation of committees. It used specific language and gave definite authority for the appointment of a special commonly-known type of committee, namely, a standing committee.
I am firmly convinced the opinion of the majority labors vigorously to sustain the conclusion therein reached. The reasoning, I most respectfully submit, is not only strained, but fallacious. I cannot concur therein.