Downs v. City of Birmingham

• Decision Date: 17 October 1940
• Docket Number: 6 Div. 710,710A.
• Citation: 198 So. 231,240 Ala. 177
• Parties: DOWNS v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

198 So. 231

240 Ala. 177

DOWNS v. CITY OF BIRMINGHAM.

6 Div. 710, 710A.

Supreme Court of Alabama

October 17, 1940

Appeal from Circuit Court, Jefferson County; Leigh M. Clark, Judge.

Suit by W. O. Downs against the City of Birmingham to recover balance of salary as Commissioner of the City of Birmingham, in which there was a counterclaim by defendant. From a judgment denying recovery to plaintiff and in favor of defendant as to costs only, plaintiff appeals and defendant files cross-appeal.

Affirmed on both original and cross-appeals.

Horace C. Wilkinson, of Birmingham, for appellant.

John S Foster, of Birmingham, for appellee and cross-appellant.

FOSTER Justice.

The questions which have primary consideration on this appeal are in respect to the force and effect of the "Sparks" Amendment to the Constitution. XXVI A, Article XXIV Skinner's Alabama Constitution, page 991.

The argument is in two phases: 1. The validity of the amendment in so far as it purports to suspend all provisions of the Constitution which prohibit or restrict the legislature from decreasing or diminishing the salary of a public officer of the State, county or city, from September 1, 1933 (when according to its terms, it had operation--since it was proclaimed to be ratified on August 2, 1933), until October 1, 1935.

2. The validity of it in so far as it purports to put a limitation of $6,000 on the salary of a city officer whose salary had been fixed by law (section 19, Act of August 15, 1923, Gen.Acts 1923, page 121), and was not subject to change by virtue of vested rights declared in sections 68 and 281, Constitution.

We accept the contention in the argument as made in both phases that the amendment has controlling influence. Appellant was elected to the office and began its service after the date when the amendment by its terms began to function.

The first phase of the argument has been often mentioned in our cases, but not given direct discussion or authoritative decision by this Court. But we have in several of them, without argument, treated the amendment as effective as against such claim. Storrs v. Heck, 238 Ala. 196, 190 So. 78; Houston County v. Martin, 232 Ala. 511, 169 So. 13; State v. Stone, 235 Ala. 233, 178 So. 18; State Docks Comm. v. State, 227 Ala. 521, 150 So. 537. In Houston County v. Martin, supra, some of the Justices expressed the opinion that the amendment was ineffective, but the majority did not concur, and the case was disposed of on other grounds. There is also in State Docks Comm. v. State, supra, a dissenting opinion by Special Justice Johnston, but he was of the opinion that it is effective as against such an attack. The dissent was not on that point. The majority did not treat that subject.

It is argued that a suspension of certain unnamed sections or features of the Constitution is not such an amendment as may be made in the mode provided for in Article XVIII, Constitution, beginning with section 284. That article is confined to the procedure to be pursued in amending the Constitution, assuming that the amendment is one which is permissible. Section 2 of Article I of the Constitution is the only one which specifically authorizes an amendment. That section in full is as follows: "Sec. 2. That all political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit; and that, therefore, they have at all times an inalienable and indefeasible right to change their form of government in such manner as they may deem expedient."

We can better treat the whole subject of amendments together, including the suspension feature of it, and the power to abrogate rights otherwise created by the Constitution itself.

Section 2, Constitution, is substantially the same as it appeared in all former constitutions of the State. See Skinner's Alabama Constitution, pages 44 and 45.

The mode of making amendments is mandatory and exclusive. Houston County v. Martin, supra; Johnson v. Craft, 205 Ala. 386, 87 So. 375; Collier v. Frierson, 24 Ala. 100.

But the character or nature of an amendment is not prescribed. It may extend to a "change [in the] form of [the] government." Section 2, Constitution. This may be in any respect, except that it must continue to be a "republican form", Article IV, section 4, Constitution of the United States; Luther v. Borden, 7 How. 1, 12 L.Ed. 581, must not impair the obligations of contracts, nor otherwise violate section 10, Article I of the Constitution of the United States, nor violate the Fourteenth Amendment of the Constitution of the United States, nor any other provision of it.

True, a constitutional convention cannot enact a law to be effective without incorporating it in the Constitution for ratification by the people. Ex parte Birmingham & Atlantic Ry. Co., 145 Ala. 514, 42 So. 118. But it may insert in the Constitution self operating provisions of a legislative character. Miller v. Marx, 55 Ala. 322, 332; 6 R.C.L. 58, note 13; 12 Corpus Juris 731, 16 C.J.S., Constitutional Law, § 49, p. 101.

Except as thus restricted, there is no limitation on the power to amend or rewrite the Constitution. Black on Constitutional Law, section 28, page 51; 16 Corpus Juris Secundum, Constitutional Law, §§ 7, 39, pages 29, 80; Collier v. Gray, 116 Fla. 845, 157 So. 40; 11 Am.Jur. 628; Scruggs v. Mayor, etc., Huntsville, 45 Ala. 220, 223.

Every proposal which effects a change in the Constitution or adds or takes away from it is an amendment. 16 Corpus Juris Secundum, Constitutional Law, § 7, p. 31; 11 Am.Jur. 629, sections 24-25. It need not be germane to any other feature of it, nor to the feature which is thus amended, provided it is clear and definite in its provisions. 16 Corpus Juris Secundum, Constitutional Law, § 7, p. 31.

There is nothing said in any of the authorities of a limitation on this power to suspend a feature of the Constitution for a definite period, so as to take it out of the Constitution during that period and to put it back in at the end of that period, all in one process. But the all inclusive power to amend by taking out and adding features would logically include this power when its meaning is clear and definite, and adopted strictly in the mode provided by the Constitution.

As here applied, it means that there shall be expunged from the Constitution all those features of sections 68, 118, 150 and 281, or elsewhere if there are any, which prohibit the legislature from diminishing the salary, fees and compensation of public officers there mentioned, and that there is fixed a maximum of $6,000 per annum for any of them, but that after October 1, 1935, all those features shall be automatically reinserted and continue thereafter as though they had never been expunged. Unless there is some other prohibition somewhere, such a "change [in the] form of government," which is said by section 2, Constitution, to be an "inalienable and indefeasible right," is inherent in the people.

Appellant contends that the benefits of sections 68, 118, 150 and 281, Constitution, are themselves inviolate, and that they cannot be affected by a subsequent constitutional amendment. He concedes that the salary of a public officer is not a contract, and that the office, if statutory, may be abolished without infringing upon the rights of the officer. But he argues that when the office continues the rights under the above sections which are inviolate by their very terms, continue to exist, and are not subject to constitutional change. This is of course true in so far as any subsequent legislation is concerned, when not authorized by an amendment to the Constitution. But all rights acquired under the Constitution are subject to the further provision of it which permits an amendment extending even to that exact right thus acquired, subject to the restrictions of the Federal Constitution, to which we have referred. No right can be acquired under the Constitution which cannot be abrogated by an amendment of the Constitution, in so far as that Constitution is concerned. This extends to contract and property rights, and would be effective in that respect but for the Constitution of the United States, which imposes a limitation on the state's power to that extent, whether manifested by the state's Constitution and amendments of it or by state legislation.

It has been seriously attempted to exempt from the operation of that principle the features of what is called in the Constitution the "Bill of Rights," such as is embraced in the first thirty-six sections of our Constitution, which comprise Article I of it. Emphasis has been placed on the last clause of that section, which is as follows: "and, to guard against any encroachments on the rights herein retained, we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate." This was not in the Constitution of 1875 or 1868, but was in those of 1865, art. 1, § 36, 1861 and 1819, art. 1, § 30, with the added clause in them as follows: "and that all laws contrary thereto, or to the following provision, shall be void." This does not appear in the Constitution of 1901. See, Skinner on Alabama Constitution, page 223.

We have no case in Alabama which undertakes to express the meaning of that status of the Constitution as it now appears in the light of its history, shown above. That it is a limitation on legislation only is clearly shown by the clause in the Constitution of 1865, 1861 and 1819, copied above. Its omission from the Constitution of 1901 is not persuasive that it was intended to prohibit any change in the Bill of Rights by constitutional amendment. Such a clause as that now appearing in section...