Ex parte Birmingham & A.R. Co.

• Decision Date: 16 February 1905
• Citation: 42 So. 118,145 Ala. 514
• Parties: EX PARTE BIRMINGHAM & A. R. CO.
• Court: Alabama Supreme Court

42 So. 118

145 Ala. 514

EX PARTE BIRMINGHAM & A. R. CO.

Supreme Court of Alabama

February 16, 1905

On Rehearing April 27, 1905.

"To be officially reported."

Prohibition on behalf of the Birmingham & Atlantic Railway Company, to restrain Hon. John Pelham, individually and as judge of the Seventh judicial circuit, from hearing and determining a cause pending in the circuit court of St. Clair county wherein one Spears was plaintiff and petitioner was defendant. Writ made peremptory. Rehearing denied.

The allegations are that Spears brought suit against the petitioner at Pell City, in St. Clair county, in the circuit court, that the same was set down for hearing on a certain day, and that witnesses had been summoned, etc.; that petitioner had protested to the said judge of the Seventh judicial circuit against said cause being set down for trial and had requested him to notify his clerk at Pell City to remove said cause from the docket and not to summon witnesses, etc. Petitioner avers that Pelham claims to have authority to hold said court at Pell City and to try said cause, and that, unless restrained from doing so, he would proceed and try the same. It is alleged that he claims his authority under and by virtue of Ordinance No. 390, passed by the constitutional convention of the state of Alabama, Const 1901, and by virtue of an act of the Legislature approved February 17, 1903 (Loc. Acts 1903, pp. 29-32, included), and under and by virtue of the authority of an act approved October 6, 1903 (Loc. Acts 1903, p. 539). It is averred that such judge has no other authority, and claims no other authority, than that conferred by said ordinance and said acts as above set out. It is also averred that said ordinance does not confer any authority or warrant of law upon the said judge to hold said term of court at such time and place, for the following separate and several reasons: (a) Said constitutional convention, in the call thereof made by the Legislature, was required to submit all of its acts to the people of the state of Alabama for ratification, and petitioner avers that said ordinance was never submitted to the people of Alabama for their ratification, and that on such account the same has never become operative and is of no force. (b) Said constitutional convention, in attempting to pass such ordinance, was legislating in regard to local matters, and said convention had no authority to enact such local legislation, and on this account said ordinance is void and of no effect. (c) Said ordinance was passed by the said constitutional convention of 1901, but was not included in such Constitution as submitted to and ratified by the people. (d) Said ordinance is not included in, nor is it a portion of, the Constitution of 1901. For which separate and several reasons said ordinance is unconstitutional and void, and does not confer the authority sought to be exercised by the said Hon. John Pelham, or any other judge, to hold such court at such a legal time and place. It is further averred that if said Ordinance No. 390 is valid and of full force and effect, which petitioner denies, the said Pelham is without authority or warrant of law to hold said court at such a legal time and place, in that no provision has ever been made for carrying such ordinance into effect and providing for holding courts at Pell City, Ala., except that certain act of the Legislature contained in Loc. Acts 1903, p. 28. It is averred that said act of the Legislature is unconstitutional and void for the following reasons: (a) It is unconstitutional and without warrant of law. (b) It is unconstitutional, in that it is a local act as defined by section 110 of the Constitution of Alabama of 1901, and no notice of the intention to apply for such local legislation was published in the county where the matter or thing to be affected was situated, giving the substance of the proposed law, and no proof thereof by affidavit was given that said notice was made and exhibited in the houses of the Legislature and spread on the journals of both of such houses. Other allegations of a similar nature are made. It is further averred as to the certain other act of the Legislature above referred to (Loc. Acts 1903, p. 539) for similar reasons. Respondent answered, admitting the truth of some of the allegations, but denying that Ordinance No. 390 was void and of no effect, and also denying the unconstitutionality of the act referred to in the petition. The ordinance is made an exhibit to the petition and will be found in the journal of the proceedings of the constitutional convention of 1901. It is admitted that this ordinance was not submitted to and ratified by the people of the state of Alabama at the election held for the purpose of ratifying the Constitution adopted by the constitutional convention of 1901. The other facts sufficiently appear in the opinion.

Tyson, Dowdell, and Denson, JJ., dissenting.

Knox, Dickson & Burr, for petitioner.

Inzer & Montgomery, M. M. Smith, McLain Tilton, Jr., and Cabaniss & Weakley, for respondent.

ANDERSON J.

The issue in this case involves the validity of Ordinance No. 390 of the constitutional convention, providing for an additional courthouse in the counties of St. Clair and Shelby, respectively, as well as Loc. Acts 1903, pp. 28 and 539. The constitutional convention assembled under and by virtue of the act of the Legislature of 1901 (Acts 1900-01, p. 224) entitled "An act to provide for the holding of a convention, to revise and amend the Constitution of the state." Section 22 of said act provides for the holding of an election for the ratification or rejection of the Constitution. The ordinance in question pertains in no way to an amendment or revision of the Constitution, and it was beyond the power of the convention to pass this ordinance, and it could not become binding or of legal force without having been submitted to and ratified by the people. Plowman v. Thornton, 52 Ala. 559; 6 Am. & Eng. Ency. Law (2d Ed.) pp. 896-898; Jameson on Constitutional Conventions, pp. 98, 414, 424-426, 493; Cooley's Constitutional Limitations (7th Ed.) p. 61; McDaniel's Case, 2 Hill, Law (S. C.) 270; Quinlan v. Houston (Tex. Sup.) 34 S.W. 738; Wells v. Bain, 15 Am. Rep. 563; Wood's Appeal, 75 Pa. 59; Goodrich v. Moore (Minn.) 72 Am. Dec. 78; 8 Cyc. p. 723, note.

Jameson, in his work on Constitutional Conventions, says: "Now, in the light of these principles, is the exercise by a convention of legislative or other governmental powers, in addition to those clearly belonging to it, to be considered as within its competence as a constitutional body? Is such an assumption of power one which threatens no danger to the commonwealth? By the theory of those who accord to it such powers, as soon as the convention is assembled, the control of the existing government over it is at an end; the Constitution lies torn in fragments under its feet; and, while the work of its instauration is in progress, that body alone constitutes the state, gathered into its single hands the reins ordinarily held by the four great systems of agencies constituting the government, to whose functions it succeeds. If this be so, what, but its own sense of justice, is to restrain such a body from running riot, as did the Thirty Tyrants at Athens? The jurists of the Illinois convention of 1862, as we have seen, affirmed that the act under which such a body assembles is no longer binding when once it has become organized. If at that moment it has also cast upon it, by virtue of its great commission, all governmental powers, how easy to extend the scope and the period of the exercise of those powers, under the plea that expediency demands it. The expedient is the appropriate domain of a Legislature. If, at the moment of organizing, a convention is endowed with legislative powers, it may be deemed expedient to subvert the system of guaranties by which our liberties are assured to us, and at the same time to withhold from the popular vote the constitutional provisions by which the change is to be effected. Such a consummation would be not merely possible. It would be probable. And, clearly, the possibility of its occurring with an appearance of rightfulness is enough to stamp as dangerous that theory of conventional powers from which it must flow. In the science of politics, it is an important point gained to have settled the limit where normal action under the Constitution ends, and revolution begins. To have done that is practically, in most cases, to have rendered revolution impossible. The result it that a convention cannot assume legislative powers. The safety of the people, which is the supreme law, forbids it. Even if we suppose the body expressly empowered by the Legislature to exercise such powers, the right so to do must be denied, because the same supreme law places an absolute interdict on such a grant. It is beyond the power of a Legislature to delegate any such authority."

We quote from the Supreme Court of Pennsylvania (Wood's Appeal, 75 Pa. 59): "There is no subject more momentous or deeply interesting to the people of this state than an assumption of absolute power by their servants. The claim of a mere body of deputies to exercise all their sovereignty absolutely, instantly, and without ratification, is so full of peril to a free people, living under their own instituted government and a well-matured Bill of Rights, the bulwark and security of their liberties, that they will pause before they will allow the claim, and inquire how they delegated this fearful power and how they are thus absolutely bound and can be controlled by persons appointed to a special service. Struck by the dangers, and prompted by self-interest, they will at once distinguish between their own...