166 So. 710 | Ala. | 1936
Questions propounded by the House of Representatives to the Justices of the Supreme Court, under Code 1923, § 10290.
Questions answered.
"By Mr. Harrison
"Be it resolved by the House of Representatives, that the following questions be propounded to the Supreme Court of the State of Alabama touching pending legislation.
"1st. The call of the Governor for the convening of the present extraordinary session of the Legislature contained the following:
" 'To provide sufficient revenue for the running of the schools and to enable the State, County and City governments to function adequately.'
"2nd. Does the attached bill, as a substitute for House Bill 21, now on the calendar of the House come within the Governor's call as set out above? Copy of said call is hereto attached.
"3rd. Does Section 29 of said Substitute violate any provision of the Constitution, *61 and would the law become effective if passed by the Legislature regardless of the outcome of the referendum provided in said section 29 and the preceding sections 28, 27, 26 and 25?
"4th. Is Substitute for House Bill No. 180, copy of which is hereto attached, within the call of the Governor?
"5th. Does the same provision or similar provisions of Substitute for House Bill No. 180 now pending, copy of which is hereto attached, render said bill violative of any constitutional inhibition?
"This Resolution is passed and this request is made by the House of Representatives for an opinion under section 10290 et seq. as amended, Code of Alabama 1923."
The following is the substance of the proclamation of the Governor calling the Legislature into special session:
"Whereas, in the opinion of the Governor of the State of Alabama, an extraordinary occasion exists which demands the convening of the Legislature of Alabama in extraordinary session as prescribed by section 122 of the Constitution of Alabama of 1901;
"Now, therefore, I, Bibb Graves, as Governor of the State of Alabama, do hereby proclaim and direct that the Legislature of the State of Alabama convene in extraordinary session at the seat of Government in Montgomery, Alabama, at 10:00 A. M. on Tuesday the 11th day of February 1936, and I do hereby designate the following subjects and matters to be considered and acted upon by said Legislature in extraordinary session assembled:
"1st. To provide sufficient revenue for the running of the schools and to enable the State, County and City governments to function adequately.
"2nd. To provide for the reduction in the price of private automobile licenses.
"3rd. To consider such amendments to the Alabama Social Security and Labor Laws as are necessary to permit the various Social Security and Labor Departments of Alabama to function in accordance with the Federal Security and Labor Program.
"4th. To authorize and empower the Highway Commission, with the approval of the Governor, to make rules and regulations concerning the operation of trucks on the public roads of Alabama."
The title and first section of the proposed act are as follows:
"A Bill to be entitled An Act to legalize and regulate the manufacture, sale and possession of alcohol, and alcoholic and malt beverages in Alabama; to create the office of Alcoholic Beverage Commissioner, to fix his term of office, compensation, and powers, and provide for his appointment; to provide and levy a license upon the sale of alcohol and alcoholic and malt beverages, and to levy an excise tax thereon, and to regulate their manufacture, possession, sale and transportation, and to provide for the general revenue of the State of Alabama; and to repeal all laws in conflict with this Act.
"Be it enacted by the Legislature of Alabama:
The bill, among other things, creates an alcoholic beverage commission, and prescribes in detail its duties with respect to regulations, the issuance of permits, and the amounts to be collected as license fees and excise taxes.
Sections 44-47 provide for an election for the purpose of securing the views of the qualified electors of the state upon the question: "Do you favor the taxation and legalization of spirituous, vinous and malt beverages in the State of Alabama in accordance with the provisions of House Bill No. 180 approved __________, 1936?"
Section 48 (a) reads:
"If the majority vote on Question No. 1 on the ballot is 'Yes,' then this Act shall become effective on the first day of the *62 month next after the returns from said election shall have been opened, and counted in the presence of the Governor, Secretary of State and Attorney General, or two of them; but if the majority vote on Question No. 1 on the ballot is 'No,' then this Act shall become null and void and of no effect."
By subdivision (b) provision is made for county elections, in event the majority vote upon the question set out above is "Yes." Subdivision (c) provides that, if the majority vote in any county upon said question be "No," then the provisions of the act shall not be held to be applicable to such county.
In re Substitute for House Bill No. 180.
"To the Hon. Speaker and Members of the House of Representatives of Alabama, Montgomery.
Sirs:
While distinctions have been drawn between "revenue bills" which by section 70, Constitution, shall not be passed during the last five days of the session and bills to raise revenue (Harris v. State,
An incidental provision by which revenue is raised cannot be sufficient to come within the Governor's call, when the bill has a larger purpose and is intended to provide for the general welfare of the people within the police power of the Legislature. Especially is this true when the whole policy of the state toward an important police regulation is changed before there can be provision for revenue in that respect. The Governor's call gave no notice that such was intended. We think it is not within the call.
We note you also inquire whether the act will be in violation of the Constitution for that it shall not become operative until the referendum there provided shall be had and result in favor of its approval.
In this respect we have often held that, when an act is complete in itself, it can be made to depend upon some contingency for its operation to become effective. In re Opinions of the Justices,
Chief Justice Cooley, in his work on Constitutional Limitations (8th Ed.) pp. 238, 239, says: "If it is not unconstitutional to delegate to a single locality the power to decide whether it will be governed by a particular charter, must it not quite as clearly be within the power of the legislature to refer to the people at large, from whom all power is derived, the decision upon any proposed statute affecting the whole State? And can that be called a delegation of power which consists only in the agent or trustee referring back to the principal the final decision in a case where the principal is the party concerned, and where perhaps there are questions of policy and propriety involved which no authority can decide so satisfactorily and so conclusively as the principal to whom they are referred?"
He then says that, if the decision of the question is to depend upon the weight of judicial authority, it would be against the power to submit the question to the vote of the whole state. He proceeds to give the views of both sides of the question. Perhaps more states have followed Barto v. Himrod (1853)
But the opinion of some of the most eminent jurists of this country who have written the law for their states have not followed the reasoning of the New York case. Particular attention in this respect is called to the case of Hudspeth v. Swayze,
And the following is taken from Smith v. Janesville,
The New Jersey opinion also quotes from Judge Holmes in a dissenting opinion for Massachusetts (Opinion of the Justices,
Those quotations give the argument opposed to the New York case, and we think it needs no elaboration, but is complete and sound. It is the view adopted in the following states: North Carolina, Manly v. Raleigh,
It is true that the majority of the states have held that the Legislature cannot submit to the electorate of a state as a whole the question of when or whether a statute properly enacted and complete within itself will be operative.
But we have leaned to the view that such legislation does not offend our Constitution when there is nothing in it to show a limitation on that right.
In respect to the income tax law, while it was not made dependent upon a vote on the act itself, it was dependent upon a proposal to amend the Constitution voted on by the voters of the state. In re Opinions of the Justices, supra. And the operation of a law in a county or city may be left to a vote in that county or city. State ex rel. v. Montgomery, supra; Ward v. State, supra; Ex parte Hall, supra.
The Legislature is justified in assuming that we will apply the principles to such acts as here considered, in view of our former cases.
We think, therefore, that the proposed substitute to House Bill 180 is not in violation of the Constitution on account of its referendum feature.
Tax measures are thought by us to be differentiated as discussed in answer to your inquiry to House Bill 21.
We think that, though not directly mentioned in your resolution, attention should be called to the omission to mention the referendum in the title of the act; but we express no opinion as to the effect of not doing so.
Respectfully submitted,
JOHN C. ANDERSON, Chief Justice.
WILLIAM H. THOMAS, A. B. FOSTER, THOMAS E. KNIGHT, Associate Justices.
To the Hon. Speaker and Members of the House of Representatives of Alabama, Montgomery.
Sirs:
We are in accord with the foregoing views of the majority of the Justices with the one exception as to the referendum feature of the bill in question, an exception, however, which we feel is fundamental.
It is our opinion, in accord with the weight of authority elsewhere (People v. Barnett,
Our views are more fully expressed in the response made to your inquiry as to House Bill 21, and which response is here adopted as a part hereof.
Respectfully submitted,
LUCIEN D. GARDNER, VIRGIL BOULDIN, JOEL B. BROWN, Associate Justices.