*1 application the face of the by therefor that of certiorari filed the Packs is dis- application appro- has been made to the missed. priate appeals rehearing court of for a ofWrit certiorari withdrawn. point complained or decision application and that said had been decid- Petition dismissed. movant, adversely ap-
ed to the and the plication to this court must be filed with HEFLIN, MERRILL, C. HAR- J. clerk this court fifteen within MADDOX, JJ., WOOD concur. days appropriate after the action of the appeals upon court of applica- the said * * rehearing tion for said, fact, compliance have
We provisions quoted
with the above relative filing application
to the of an for rehear-
ing appeals necessary in a court of
give jurisdiction. this court v. —Moore So.2d 903 State, 835; 147 So.2d Oliver Peggy L. KNIGHT State, So.2d 618. petition certiorari, In their for writ of WEST ALABAMA ENVIRONMENTAL IM-
the Packs aver:
AUTHORITY,
PROVEMENT
a Pub-
“ * *
*
Corporation,
lic
Attorney
et al.
appellant
for
timely
petition
filed
for re-
[American]
manding previous orders, decrees and application re-hearing hence the for adversely been your
has decided Peti- by
tioners said Court Appeals of Civil on
August 1970.”
But application it was rehearing for
filed American that was decided ad-
versely posture Packs. At they
the case position were in the same
they would have been if the Court of Civil
Appeals judgment had reversed the opinion 10, 1970,
trial court in its of June opinion or in its It 1970. June upon
would been have incumbent the Packs application
to file an rehearing Appeals predicate
Court Civil as a They
review this court. should have application
filed such an within fifteen
days opinion August after the filed, application
Because no such was
writ certiorari heretofore issued with- improvidently
drawn because it or- was petition
dered to be issued and the for writ *2 Turner, Luverne, appellant.
Alton L. *3 III, Antwerp, Mobile, ap- Garet Van
pellees. empowered to issue revenue bonds and construct, acquire equipment, and lease systems
facilities and in connection with purposes combatting overall ecologi- cal damage.
Appellant, Peggy Knight, individually, L. a taxpayer and citizen filed this seeking action have said Act declared unconstitu- injunctive tional seeking relief in the *4 of County Circuit Court Crenshaw as a pursuant class Equity action instituted appellees Rule 31. The En- West Alabama Improvement Authority, vironmental North Improvement Alabama Environmental Au- thority and Southeast Environ- Alabama Improvement public mental Authority are corporations organized pursuant to and in provisions with the of said accordance Act respondents No. were 1117and in the lower court as appellees, were other who are said members directors of each au- thority.
HEFLIN, Chief Justice.
Attorney
The
accepted
General
service
and waived
decree of
further notice. The
This court holds that the “Environmental
the trial
held said
did
Improvement
court
Authority
No.
Act of 1969” does
the raised
violate
constitutional
provisions
violate
of Sections
45, 42,
visions.
43 and
Constitution
Alabama,
of
as amended.
below,
In
appellant, Peggy
court
Improvement
The “Environmental
Au-
Knight,
principal questions
raised five
as
L.
1969,”
thorities Act of
also identified as
validity
of said Act
these
No.
Act No.
Acts
General
of Alabama
questions,
summary, being:
in
1969,Regular
(which appears
Session
Code in
of
Sections 270-287
Title
Code
“(1)
the said Act No. 1117
Whether
amended,
as
1969 Cum.Pocket Part
(a) to en-
authorizing
invalid as
the State
Supp.
Recompiled
Code of Ala-
gage
improvements;
in works of internal
bama),
passed by
was
Legislature
the 1969
money
or
in
(b) to lend
or its credit
aid
proclaimed
with the
purpose
authorizing
works;
(c)
or
to be interested
public
establishment of
any
enterprise;
private
corporate
or
or
which would
cooperate
have the
any
(d)
money
to lend
or its credit to
with and lend financial assistance and other
individual, association,
corporation, all
or
municipalities, communities,
aid to
counties,
meaning
within
industries and
corpora-
Alabama,
as amended.
Constitution
undertakings pertain-
tions matters and
ing to the control,
abatement
“(2)
Act No. 1117
Whether
said
water, air,
pol-
authorizing
is invalid
a 'subdivision’
Among
lution.
things provided
credit,
other
grant
lend
State to
its
accomplish
said act to
legislative
money
an-
in aid
thing of value
of^
purpose,
to, individuals,
nounced
corpora-
associations
principal
There
five
inhibitions
94 of
of Section
tions
violation
embodied in
against the
of Alabama
as amended.
State
provisions
of said
and issuance
sale
“(3)
'(1)
Whether
is forbidden
State
Constitution.
purported to be authorized
improvement,
the bonds
engage in
of internal
works
constitute
such,
Act No. 1117 would
said
money
(3)
in aid
(2)
lend
against
a
new debt
creation
such, (4) to
in aid of
lend
credit
by,
a
incurring
new debt
State
any private
corporate
enter-
interested
authority,
on its
violation
money
prise,
or its credit
(5)
to lend
Alabama, as
of the Constitution of
corporation.
individual, association, or
amended.
prohibitions
of said Sec
All of
“(4)
Whether
tion
of the Constitution
Alabama
in that it violates Section
invalid
It
directed
Alabama.
toward the State of
amended,
Alabama, as
the Constitution of
of this
is well established
the decisions
3, 8(7)
of Sections
because
sepa
corporation
is a
Court that
corpora-
authorizing
8(9)
said Act
entity
and from
rate
from
to render
under said Act
tions created
thereof, including
local
subdivision
*5
industries
financial assistance to
city
county,
prohibitions
the
a
or
and that
8(10)
private corporations, and of Section
the
are directed to
State
of Section 93
authorizing
Act
of said
corporations.
and not to
Edmonson
engage in works
created under said Act
Development Author
State Industrial
improvement, are not ex-
of watershed
115;
206,
re
In
ity,
184
279 Ala.
So.2d
pressed
title of said Act No. 1117.
in the
506,
Justices,
49
Opinion of the
Ala.
254
175;
Justices,
Opinion
re
of the
In
wrongful dele-
is a
“(5)
there
Whether
12;
Opinion
In re
254,
Ala.
154 So.2d
275
gation
legislative power,
of
under the
147,
Justices,
So.2d 588.
270 Ala.
1117,to the Gov-
of said Act
visions
No.
that
held
This Court in Edmonson
in connection
the creation of
ernor
with
public corporation for
creating
act
Act, or to
public corporations
said
under
Alabama,
growth in
promotion of industrial
in
thereunder
created
members,
cabinet
up of three state
made
their
their
connection with
exercise
tax
special
from a
revenue
Act, rendering the
powers under said
pur-
pledged
for
appropriated and
was
being
as
in
said Act No. Ill7 invalid
authority’s pur-
carrying
pose of
out
42,
44 of
43 and
violation of Sections
con-
restraints
the five
pose, did not violate
amend-
as
the Constitution
of the Constitu-
tained in said Section
ed.”
by Edmon-
upheld
which was
tion. The act
basic
1117 in its
is similar to Act No.
son
questions
raised for
review
These
course,
but,
with differences
approaches,
of error.
by proper assignments
this Court
functions,
powers
organization,
toas
Question
scope.
involves
No. 1
Alabama. Section
Constitution of
authorizes
Nothing in Act No.
amended,
part:
provides,
pertinent
in
as
State,
such,
in
works
engage
as
money
to lend
improvement or
engage in
of internal
“The state shall not
works
aid
in
its credit
money
or
lend
or
aid
improvement, nor lend
internal
any private
such;
such or to be interested
nor shall
its credit in aid
money
to lend
or
any
corporate enterprise,
or cor-
state
interested in
individual, association
any
money
its
its
porate enterprise, or lend
credit to
association,
Act makes
individual,
corporation. The
any
credit to
* * *"
in-
separate
thereunder
created
authorities
corporation,
dependent entities.
pay
any
control
each
event
credit
is in
corporation
such
aby
exercised
board
nowise involved. This Act does not vio-
appointed by
directors
part
Governor
late
this
of said Section 93 of the
staggered terms and are removable from Constitution.
their
proc-
offices
directors by
The restraints of said Section 93 con-
impeachment.
ess of
of the
Section 9
cerning being
any private
interested
provides
obligations
of the
corporate enterprise have been construed
authorities created thereunder shall be sole-
mean,
exceptions
certain
not here
with
ly
exclusively
obligation
relevant,
may
engage,
State
authority
obligation
and shall not create an
alone or in
others,
concert
busi-
any county
municipality
debt of
ness
type generally
characterized as
of the State.
private enterprise.
ex
rel. Wilkinson
Appellant
Opinion
on
re
relies
In
Murphy,
So.
Justices,
237 Ala.
where
283;
So.
A.L.R.
Opinion
Justices,
In re
this Court
held that
187 So.
244.
Said
author-
was violated
an act
1117 does not
engage
authorize
the State
izing the
Agriculture
Commissioner of
any private
enterprise and
does
vio-
produce
Industries
to establish
markets.
late
prohibitory
clause of said Section
legislature
But in a later case after
independent
authorized
engage
an
board to
Again
separate entity
concept must
activity,
constitutionality
the same
be considered in connection with whether
approved
sepa-
such action was
under the
this Act
lending
money
authorizes that
entity
Opinion
rate
doctrine.
See
individual,
or credit
of the State to
Justices,
247 Ala
93 Constitution that the shall State this inhibition contained in improve- of engage in of internal 93 works by Constitution not violated the Act. ment. concludes that the suggestion There is in Act that Court “Environ- no Improvement mental Authorities Act of there is of the inhibition violation 1969” does not violate against the Section 93 of the contained said Section State money of Alabama. pertaining lending 93 of aid improvement. of works internal of considering In question the second as to whether or not Act
The clause No. is unconsti- pertaining restriction 1117 tutional in that it against the authorizes a lending State its credit aid “subdivision” credit, of grant' of the State lend improvement internal has con- or to been public money thing strued to in aid employing have reference of value individuals, associations, corpora- the credit State for borrow- ing money contrary tions and the creation debts. 94 Con- amended, Opinion In stitution of Justices, re 209 Ala. as the in- 593, terdictions of 96 So. does not have No. 1117 reference to money authorize kind of the State borrow subdivisions defined State indebtedness, political as or incur an is- the bonds subdivisions such as the coun- ties, cities, sued by probably an authority do not create towns and dis- certain obligation or of the The bonds tricts governmen- debt State. which are endowed payable powers, though are tal solely from revenues derived functions limit- even by ed, anti-pollu- the Authorities their supported by from and which are re- are tion sponsible protection activities. The is not committed public State for the rev-
21 reasoning corporations same enues. The which under- of the do not fall State entity separate concept applied lies the as prohibition within the of that section Opinion Section 93 of the Constitution must the Constitution. of the Jus- again independent tices, Separate, 176, 391; considered. 264 Ala. 85 In re So.2d Opinion Justices, 170, are not sub- of the 256 Ala. They divisions of the State. are sub- So.2d 68. And we have held meaning divisions of the public corporation State within the bonds of a do not con- Constitution, of Section Rogers stitute a debt of the State. 372; Garlington, 13, amended. 234 Ala. 173 So. Bridge Corp., Scott v. Alabama State 12, 273; Ala. Previously 169 So. Alabama this State Court considered Smith, Bridge 311, Corp. question same 217 Ala. pertaining to an act So. 695. To the same effect our development created industrial opinions Opinion Justices, of the boards (Act under “Cater Act” 699; Opinion Gen.Acts So.2d Regular of Alabama Ses Justices, 175; sion) Opinion 254 Ala. In Justices, 254 Ala. Opinion re Justices, public 49 So.2d and held that a corporation organized 900.” So. under the of that act was not a “subdivision” of This Court holds that Act No. 1117 prohibitions State. Such contained in Sec does not contravene Section 213 tion the Constitution were not vio Constitution, as amended. lated that act. corpora While tions which were created Act No. under The Title appears of said Act No. 1117 1117 are somewhat different from those following words: that have been created under the “Cater Act,” “To authorize the creation they sufficiently similar for this corporations study, as authorities for the court to conclude that corpora such control, abatement and tions are not “subdivisions” air, pol- that Act No. 1117 does not violate the ; construction, acquisi- lution to allow the inhibitions listed in Section 94 of Con tion stitution, ownership as amended. *7 of purpose; for pre- facilities this to Proceeding question to consider the of duties, composition powers, scribe the whether Act No. 1117 violates Section 213 financing corporations; and such of the Constitution of as amend- provide cooperation for with ed, necessary again sep- it is review the agencies subdivisions and and in- other entity concept. arate has court con- state, strumentalities of the and to ex- sistently repeatedly and held that the re- empt such authorities from taxation.” strictions solely applica- Section provisions, Among other Section State, such, ble to separate the and not to says enacted that each law public corporations, the which do bonds of by legislature one “shall contain but not a constitute debt of the State. Justice subject, clearly expressed which shall be Merrill, in Edmonson Industrial v. State its title.” Development Authority, supra, stated following: The title to Act No. does not “(9,10) public expressed provi Bonds a cor- issued make reference to the
poration separate entity is from sions 8(7) a of Sections of the and 8(9) the State not a new debt Act and purposes will constitute which set forth detailed meaning powers of the public corporations State within the Sec- au specifi- tion 213 as amended. public corporations have thorize We to render cally by public said that bonds issued pri- financial assistance to industries and corporations provisions light foregoing
vate
and the
Examined
of the
criteria,
8(1)
require-
which authorize
meets all the
engage
in works of water- ments of
of the Alabama Consti-
improvements.
pertinent.
expresses
shed
tution here
Its title
a
general
subject
study, control,
idea or
—the
A lucid
this constitutional
discussion of
abatement and
air and
Opinion
pi'ovision
found in
of the
is
general
pollution.
Jus-
is
There
tices,
wherein
275 Ala.
So.2d
deception.
no
The matters
covered
following language appears:
provisions
cog-
of the Act relate to or are
combatting
general subject
nate
of the re-
“(2)
purposes
of the
One
pollution
Improve-
and the Environmental
45, supra, that the
quirement of Section
Authorities,
ment
as the
to serve
clearly
subject
be
ex-
of a law shall
agencies
carrying
purpose.
for
out this
surprise
pressed
title,
prevent
is to
plan
There is
authorize
one
action —to
by incorp-
upon
legislature
or fraud
creation
with
provisions
reasona-
orating in bills
not
through
bonds
raise funds
revenue
title,
might
bly
disclosed
and which
objective
carrying
for
the main
use in
out
overlooked,
unintentionally ap-
pol-
preventing
abating
controlling,
Opinion of
proved
enacting
the bill.
facilities
through
lution
construction
Justices,
23 in the case Porter Coal Co. This Court the 5th itself to now addresses Court 359, 362, Davis, 93, 165 held Ala. So. by appel- 231 raised the question (cid:127)constitutional delegate its legislature cannot 42, the 43 and 44 Sections involves lant which law, a power a but it can make to make Alabama. of the power determine some delegate a to to law 44 the Constitution 43 Sections law things upon the fact state of which powers doc- separation of pertain to the action its own makes or intends to make scope prohibitions outlining the trine, stop deny to the depend. this be To would executive, judicial and the powers of many are government. There wheels of government. legislative branches of legisla- things upon wise and useful which con- Act No. 1117 appellant contends that to depend be known tion must which cannot power legislative upon fers the Governor law-making power, and must therefore by these sections of is forbidden which subject inquiry be a and determination Constitution. legislative halls. outside of delegates cer- 4 Act Hall, In Heck So. upon the fact-finding duties Governor. tain Court, system upholding this merit to form Environmental Im- In order act, following quoted approval provement Authority, application first must ex rel. Adams v. statement from State his for review be made to Governor Burdge, L.R.A. Wis. N.W. is prior incorporation. The to Governor 157, Am.St.Rep. 123: authorized examine statements made to application authority incorpo- for to “The true test and distinction whether rate and to determine whether or not such power strictly legislative, or whether statements are The Act further true. administrative, merely relates it is guidelines vides certain this determina- for law, ‘is execution of statute purely tion. administrative. His task power delegation to make between the must He determine whether or not law, necessarily a dis- which involves applicants authority proposed and the meet be, and con- as to it shall cretion what legislature. the standards set If authority ferring or discretion requirements noncompli- of the Act reveal execution, to be exercised under ance, deny application, he must and if cannot pursuance of the law.’ The first application compliance, he must reveals objection latter, no valid done. To the authorizing issue his executive order can be made.” incorporation. provided guidelines These Opinion Justices, 254 Ala. legislature In are both clear and reason- considering the Cater while able. Act, delegation scrutinized Court respect With creat- municipalities regards authority Act, ed under said there certain admin- development boards and creating industrial powers istrative conferred de- inappropriate held it was carry signed reasonably them enable municipality the delegate legislature to a They purposes out the broad of the Act. forma supervise and control studies, surveys can make and undertake public corporation within tion of acquire, operate, lease or construct and legisla by the set requirements limits and *9 dispose abat- purpose of facilities . ture. ing, preventing controlling and environ- 110, Lusk, pollution. They mental confine them- Norton v. Ala. must power to 849, delegation of aim selves field it their held to this and make in connec- legislature pollutants to eliminate which sources of Governor appropriation of making an causing tion with pollution in excess of normal ap- upon the released acceptable certain sum “to be standards. proval of the Governor” was an im- Great R. Reed, Southern Co. v. proper legislative delegation power. 27 So. title of Act No. 1117recites:
Therefore, this Court holds 1117 is not violation of Sections “AN ACT 43 and Constitution of Alabama wrongfully because dele does not “To authorize the creation of gate legislative to the Governor corporations study, as authorities for the connection the creation of cor with control, prevention abatement and porations wrongfully under said Act or water, air, pollu- general environmental delegate legislative powers public cor tion; construction, acquisi- allow porations provisions created under ownership by tion and corporations* said Act in with connection the exercise of purpose; prescribe facilities for this powers their under said Act. powers, duties, composition and financing corporations; pro- be, The decree of trial is due court cooperation vide for sub- with is, and affirmed. agencies divisions and other and instru- Affirmed. state, exempt mentalities of the and to such authorities from taxation.” All except concur COLE- Justices MAN, J., who dissents. Appellant body contends that the act contains following provisions which clearly expressed title, are not in its to wit: COLEMAN, (dissenting) : Justice Purpose Corporation.— “Section 3. principal One of the five questions raised corporations may Public be formed under constitutionality as to the of Act No. of this act for one or September approved 12, 1969; Acts of following purposes: more all of the Alabama, Ill, 2060; page Vol. undertake, and to make cause to be body is whether the the act contains made, technical, financial, engineering, clearly expressed visions which legal appropriate and other studies and contrary requirements the title surveys air, respect water, with which, general problems pollution environmental pertinent part recites: operation; and hazards within the area of “Sec. 45.....Each law shall construct, acquire, operate, own and but subject, contain one shall which be others, singly conjunction or in ” clearly expressed in its title . . . . lease, dispose sell equip- and otherwise ment, systems facilities for the con- question is stated as number (4) trol, abatement, opinion of the court. air, general pollution; environmental parte Pollard, cooperate “In the case of Ex as- with and lend financial 77, 99, question it is municipalities, ‘The sistance and said: must other aid to always whether, communities, taking counties, be from the title industries subject, anything we find can within bill which operation cannot referred to that outside of the area subject. do, If we law embraces a within outside of the boundaries subject not described in the title. But State of matters attained, undertakings having conclusion should never be to with the end do except by argument purpose control, characterized abate- - liberality mentj water, air, or prevention of construction and freedom ” from all pollution. nice verbal Alabama criticism.’ *10 any way form of any its funds any compensation to or remuneration Corporation.— 8. Powers of “Section any making of engaged in the persons following authority shall have un- studies, surveys, arrangements, powers inciden- together powers, with all designs, dertakings, and construction discharge necessary or tal thereto per- to supervision other than plans and corporate .... thereof in form: employed directly sons who to, acquire, and take title (6) to receive authority and who connection lease, hy other- purchase, gift, devise or (9) any person; other to not answerable wise, hold, to keep develop, and to and subject to the give, and to make available transfer, convey, lease, assign, or other- section, of this (8) clause every dispose property of kind wise communities, counties, municipalities, to mixed, real, character, personal and and businesses, firms, industries, and other therein, every wheth- and and interest authorities, finan- corporations and the area er located within or outside of aid of assistance and and technical cial operation or within or outside of di- every will and character which kind Alabama; pur- acquire, (7) State of to encourage, indirectly promote, rectly or maintain, chase, construct, operate, own, abatement, control, pre- or or effect the enlarge, any equip- improve extend and water, air, general environ- or vention ment, plant, apparatus, system, or pollution; engage in works (10) mental to character, whatever used kind and or singly improvement, either watershed may which be useful in connection with cooperation with conjunction and or control, abatement, prevention or others; .” . . . air, water, pol- general or environmental directly indirectly, enter into lution or to gives notice No. 1117 The title of Act arrangements operation joint for the or creation of that the act authorizes operation same, construct or control, abate, and corporations study, property install the same on the of others air, prevent water, general or assent, conjunction with their on in with and pollution; the construction to allow integral equipment, as an part plants, or of facil- corporations” ownership “by such systems assent, or of others with their purpose; prescribe the ities for this lease, and to lend or sell of the same financing duties, and powers, composition, counties, communities, municipalities, provide corporations; and to “for industries, firms, businesses, and other and sudivisions cooperation” with authorities, with agencies other and instrumentalities consideration, or without valuable in con- state. abatement, control, nection with the provides prevention body water, air, act general Section 3 of en- may under corporations be formed pollution, vironmental and to discard own, operate construct, acquire, dispose same, act otherwise with or control, consideration, for the equipment without and facilities valuable abatement, pollution; prevention of authority; (8) sole discretion purpose appears to be undertake and to make cause to be however, made, expressed singly conjunction and in the title. Section either or in corporations formed provides cooperation others, also that the appropriate with purposes studies, may be for surveys, arrangements, under- under the act “ dis- lease, takings and otherwise plans . . . sell designs and construction . systems of, equipment, facilities and supervision do, directly pose having “ ” fi- lend . . . . indirectly, control, abatement, . and to . . . municipal- .... air, nancial assistance en- communities, counties, ities, industries pollution; provided, vironmental how- .... ever, authority pay that the shall out. *11 within or outside of the .,” boundaries the mentalities of the . state . . but any matters and under- this recitation in the title does suggest not takings having to do with the corporation .... “cooperate” shall control, water, abatement, or apparatus the extent selling property or air, general pollution.” or environmental with or without consideration, giving financial assistance. writer does nothing find give I the title notice corpora- find in the title notice that the proposes empower that the act cor- power tion will have engage in watershed porations lease, “to sell and dis- otherwise improvement. pose of” equipment and facilities to be For reasons which I acquired have undertaken corporation, or to “lend state, I opinion am of financial that Act municipalities assistance” to does counties, industries, requirements conform to the and Constitution, respect- bound- within outside the fully dissent. aries of the State of Alabama. provides the created cor- “ porations power shall have . transfer, convey .... or otherwise
dispose property every kind and char-
acter, real, personal and mixed ....
whether located within or outside of the operation area of or within or outside of ”
the State of Alabama . . . . corporate in clause (7), authorizes acquire purchase apparatus Faye Bennie BOYD may “. . . . in con- useful” pollution lease, trol of “to sell lend or Ol lis SHAW. municipalities, of the same” coun- firms, ties, businesses, “. . . . with Faye Bennie BOYD . .” without valuable consideration . . and “. . . discard otherwise .to dispose same, valu- with or without William THOMAS. . able consideration . .” . 6 Div. 789-A. corporation (9) authorizes the Clause Supreme of Alabama. Court “ subject give, .... to ... April 15, section, (8) to ... clause of this firms, industries, to counties .... “ .,” others, . businesses . . . and technical assistance .....
financial every will kind and character which
directly promote indirectly .... effect control ....
air, pollution.” (10) corporation
Clause authorizes
engage improvement “in works of watershed gives
The title notice that the act “cooperation
vides for sub- agencies
divisions and other instru-