Edmonson v. Brewer

• Citation: 211 So.2d 469,282 Ala. 336
• Decision Date: 06 June 1968
• Docket Number: 3 Div. 359
• Parties: Teresa M. EDMONSON v. Albert P. BREWER, as Governor, et al.
• Court: Alabama Supreme Court

Page 469

211 So.2d 469

282 Ala. 336

Teresa M. EDMONSON v. Albert P. BREWER, as Governor, et al.

3 Div. 359.

Supreme Court of Alabama.

June 6, 1968.

Goodwyn, Smith & Bowman, Montgomery, for appellant.

Bradley, Arant, Rose & White, Wm. Alfred Rose, Ellene Winn, Wm. M. Slaughter and James H. White, III, Birmingham, for appellees.

HARWOOD, Justice.

Act No. 272 adopted at the 1967 Regular Session of the Legislature of Alabama, provided for the submission to the voters of this state of a Constitutional Amendment in an election to be held on a day specified.

The proposed amendment authorizes the state acting through a bond commission composed of the Respondents (the Governor of Alabama, the Finance Director, and the Director of Conservation) to sell bonds in the amount of $43,000.000 for the purpose of acquiring, developing, and equipping parks and park facilities in the state.

This amendment will hereinafter be referred to as the 'Parks' amendment.

In an election held on 5 December 1967, the amendment was approved by the voters, 62,650 votes being in favor of the adoption of the amendment and 29,125 votes against its adoption. The results of the election being duly canvassed and certified as required by law on 13 December 1967, the Governor on that day proclaimed the amendment ratified.

In March 1968, Teresa Edmonson, as a citizen and taxpayer of Alabama, in her own behalf, and in behalf of all other citizens and taxpayers of this state, filed a declaratory proceeding in equity in the Circuit Court of Montgomery County seeking to have the amendment declared invalid.

The bill alleges two defects which allegedly renders the amendment invalid:

1. That the proclamation notice of the election was not published in a newspaper of Jefferson County preceding the election as required by Section 284 of the Alabama Constitution, as amended, and also as required by Act No. 272 itself which provided that notice of the proposed amendment should be given by proclamation of the Governor and published once a week for four successive weeks next preceding the election day in a newspaper published in each county, or by posting a copy of the proclamation notice at each courthouse and post office in every county in which no newspaper is published.

We note here that Section 284 of our Constitution, as amended, provides, as to publication of the proclamation notice of an election pertaining to proposed amendments to the Constitution as follows:

'* * * Notice of such election, together with the proposed amendments, shall be given by proclamation of the governor, which shall be published in every county in such manner as the legislature shall direct, for at least four successive weeks next preceding the day appointed for such election.'

2. The second defect alleged in the bill of complaint affecting the validity of the amendment is that the proposed amendment is so vague and uncertain as to be rendered unconstitutional, in that, it specially pledges for the payment of interest and principal on said bonds to be issued by the bond commission (Governor, Finance Director, and Conservation Director) a portion of the proceeds of an additional privilege and license tax on the sale, storage, use, and consumption of cigarettes 'levied by an Act introduced at the 1967 Regular Session of the Legislature of Alabama as Senate Bill 280', which tax was appropriated in said Act to the development of state parks and park facilities, and said Senate Bill 280 was never enacted by the legislature.

The cause was submitted below on an agreed statement of facts. In appellant's brief this agreed statement of facts has been summarized as follows:

'1. The 'Parks' Amendment authorized the State to sell and issue bonds not exceeding $43,000,000 in the aggregate principal amount for the purpose of acquiring, providing, constructing, developing and equipping State Parks and park facilities.

'2. On October 9, 1967, the Governor of the State issued a proclamation setting forth the 'Parks' Amendment and giving notice that an election would be held in the State on December 5, 1967 on the question of whether the 'Parks' Amendment should be adopted.

'3. On October 16, 1967, the Governor mailed a copy of her proclamation to a newspaper published in each of the sixty- seven (67) counties of the State, along with a letter requesting that said proclamation be published in that newspaper once a week for the four successive weeks preceding the election.

'4. The newspaper designated by the Governor for the publication of the notice proclamation in Jefferson County was the 'Shades Valley Sun.' That newspaper received the Governor's proclamation with the accompanying letter, and acknowledged receipt of both documents, but, as the result of a 'clerical error,' completely failed to publish said proclamation.

'5. The election on the 'Parks' Amendment was held on December 5, 1967 in each county of the State, at which time the 'Parks' Amendment was submitted to and voted upon by the electors of the State. The votes cast therein were canvassed, tabulated and returns thereof made to the Secretary of State. On December 13, 1967, the returns were counted, and it appeared from said count that a majority of the qualified electors voting in said election had voted in favor of the amendment, with the vote being 62,650 votes for the amendment and 29,125 votes against it. Whereupon, the Governor issued a proclamation proclaiming that said amendment was valid and a part of the Constitution of Alabama.

'6. On December 5, 1967, the date of the election, there were 241,045 registered and qualified electors in Jefferson County, Only 12,772 of said electors voted on the 'Parks' Amendment, with 9,831 voters voting in favor of said amendment and 2,941 against it.

'7. Approximately 4,000 copies of newspapers published outside Jefferson County, which contained copies of the proclamation, were circulated in Jefferson County during the four weeks preceding the date of the election.

'8. Extensive publicity was given, during the weeks preceding the election, to the 'Parks' Amendment in the Birmingham News and the Birmingham Post Herald, and over three television stations and ten radio stations, all located in Jefferson County.

'9. Dr. David C. Hurst, an expert statistician holding the position of Chairman of the Department of Biostatistics at the University of Alabama in Birmingham, evaluated and analyzed the voting patterns in Jefferson County and in the State as a whole in the special statewide election held on the sixteen proposed constitutional amendments submitted to the electorate of the State on December 5, 1967, to determine whether the said voting patterns gave any statistically significant indications that the participation of the electors in Jefferson County in the said election was affected by the failure of the Shades Valley Sun to publish the Governor's proclamation. Dr. Hurst concluded that the said failure had no effect either (1) on the total number of electors in Jefferson County who voted in the election, or (2) on the percentage of those Jefferson County electors so voting who cast their ballots in favor of or against the Amendment.

'10. The 'Parks' Amendment specially pledges as security for the 'Park' bonds the funds to be derived from 'an additional privilege and license tax * * * levied by an Act introduced at the 1967 Regular Session of the Legislature of Alabama as Senate Bill 280. * * *' However, Senate Bill 280 was not enacted into law. Nevertheless, Act No. 309, which originated as House Bill No. 507, was enacted into law, and it was identical, both in words and figures, to the Senate Bill 280 referred to by the 'Parks' Amendment.

'11. The Appellees claiming to constitute a bond commission propose to provide for the sale and issuance of the bonds authorized by the 'Parks' Amendment, and will cause the bonds to be sold and issued unless this Court declares that the 'Parks' Amendment is invalid.'

Counsel for appellees while agreeing to the above summary of the facts, has also suggested that the agreed facts also show that the method followed by the Governor in arranging for the publication of the notice of the Parks amendment was the same as used for all 16 of the amendments to be voted on in the election of 5 December 1967, and was the same method that has been followed for over 25 years by the Governors of the state in arranging for proclamations giving notice of elections on proposed amendments to the Constitution.

Further, the circulation of the Shades Valley Sun was less than 4,000 copies, mainly confined to a particular residential area in Jefferson County.

Upon completion of the hearing the lower court ordered, adjudged, and decreed that the Parks amendment was not invalid for any reasons set forth in the bill of complaint; that the said Parks amendment is a part of the Constitution of Alabama; that the State of Alabama, acting through the bond commission constituted in the Parks amendment had lawful authority to issue and sell the bonds authorized in the amendment; and that said bonds will be general obligations of the State additionally secured by a special and irrevocable pledge of so much as may be necessary of the additional privilege and license tax levied by Act No. 309, adopted at the 1967 Regular Session of the Legislature of Alabama.

The complainant below perfected this appeal from said decree.

We first consider whether the failure to publish in Jefferson County the proclamation giving notice of the Parks amendment rendered the statewide election on, and approval of said amendment, invalid in view of the provisions of Section 284 of our Constitution, as amended, and the provisions of Act No. 272, supra, as to the publication of the notice.

As to compliance with constitutional and statutory provisions pertaining to notice of elections, it is apparent from our decisions that in case of Local elections called by local governing...