In re Opinions of the Justices

• Decision Date: 01 June 1923
• Docket Number: 1.
• Parties: IN RE OPINIONS OF THE JUSTICES. IN RE AMENDMENT TO SECTION 93 OF THE CONSTITUTION.
• Court: Alabama Supreme Court

96 So. 487

209 Ala. 593

IN RE OPINIONS OF THE JUSTICES. IN RE AMENDMENT TO SECTION 93 OF THE CONSTITUTION.

No. 1.

Supreme Court of Alabama

June 1, 1923

Minority Response, June 9, 1923.

Syllabus by the Justices.

Advisory Opinions.-The act "to provide for obtaining the opinions of the Justices of the Supreme Court, or a majority thereof by the Governor or either House of the Legislature, upon important constitutional questions," contemplates merely advisory opinions of the individual Justices, not of the court, binding neither the Justices nor the department or officer requesting the opinion; and is not invalid as being an encroachment by one department upon the powers of another.

Issuing Bonds.-Under an amendment to section 93 of the Constitution of Alabama (1901), providing that the state may, at a cost of not exceeding $10,000,000, engage in port improvement, the state is authorized to issue bonds in the amount stated.

Indebtedness of the State.-Under said amendment the state may incur an indebtedness of not exceeding $10,000,000 for port development, notwithstanding section 213 of the Constitution of 1901.

The following communication, formulated and presented as the Advisory Opinion Act purports to authorize, has been received by the Justices. The questions propounded have been considered with the most thorough care by the Justices signing the responses to be stated to the questions thus propounded by you "State of Alabama, Executive Department.

"Montgomery, February 20, 1923.

"To the Honorable, the Justices of the Supreme Court of Alabama-Gentlemen:

"Under and by virtue of an act of the present session of the Legislature, approved February 15, 1923, 'To provide for obtaining the opinion of the Justices of the Supreme Court, or a majority thereof, by the Governor or either House of the Legislature, upon important constitutional questions,' I deem it advisable to request your opinion or opinions on the following questions, to wit:

"First. Can the state of Alabama be 'authorized by appropriate laws passed by the Legislature' to issue state bonds to an amount not exceeding ten million dollars, to enable it to 'engage in the work of internal improvement, of promoting, developing, constructing, maintaining and operating all harbors or seaports within the state or its jurisdiction,' as is provided by the last amendment to section 93 of the Constitution of Alabama, which amendment was adopted and proclaimed to be a part of the Constitution of Alabama on November 22, 1922?

"Second. Can the state of Alabama be 'authorized by appropriate laws passed by the Legislature' to incur an indebtedness not exceeding ten million dollars, in order to 'engage in the work of internal improvement, of promoting, developing, constructing, maintaining and operating all harbors or seaports within the state or its jurisdiction,' as is provided in the last amendment to section 93 of the Constitution of Alabama, which amendment was adopted and proclaimed to be a part of the Constitution of Alabama on November 22, 1922?

"Third. Does section 213 of the Constitution of Alabama prohibit the state from incurring debts or issuing bonds, not exceeding ten million dollars, to enable it to 'engage in the work of internal improvement, of promoting, developing, constructing, maintaining, and operating all harbors or seaports within the state or its jurisdiction,' as is provided in the last amendment to section 93 of the Constitution of Alabama, which amendment was adopted and proclaimed to be a part of the Constitution of Alabama on November 22, 1922?

"Fourth. Is the amendment to section 93 of the Constitution of Alabama, as referred to in the preceding questions, within the limitations or prohibition of section 213 of the Constitution against the state incurring debts?

"In conformity with the foregoing statute approved February 13, 1923, I respectfully request you gentlemen to state to me your opinion or opinions on the questions above mentioned, as soon as may be convenient to your honors.

"I am, with great respect,

"Your most obedient servant,

"Wm. W. Brandon, Governor."

The undersigned Justices respectfully reply in the affirmative to the questions designated first and second in the communication reproduced ante, and in the negative to the questions designated third and fourth in the communication reproduced ante. The considerations and grounds inducing the categorical responses made to the several questions propounded are set forth in the opinion which, by direction of the Justices signatory thereto, has been prepared by Justice McCLELLAN to express their judgments in the premises.

The Advisory Opinion Act.

The specific questions, propounded by the Governor, reproduced in the foregoing responses made by a majority of the Justices, in their individual capacities, are the first to be propounded under the act (approved February 13, 1923) "to provide for obtaining the opinion of the Justices of the Supreme Court, or a majority thereof, by the Governor or either House of the Legislature, upon important constitutional questions."

It was aptly observed in Norwood v. Goldsmith, 168 Ala. 224, 234, 53 So. 84, 87, that-

"All persons or officers are of necessity required to pass upon the validity of all acts *** under which they are required to act or to decline to act. In so acting or declining to act *** he must necessarily pass upon it for himself."

In the exercise of this necessary, tho obviously nonconcluding function (Norwood v. Goldsmith, supra), the Justices-in their individual capacities only, not as the means for the expression of the judgment of the Supreme Court of Alabama-have considered the act with respect to its proper construction and effect as well as to its constitutional validity.

Apart from the title already quoted, the act reads:

"Be it enacted by the Legislature of Alabama:

"Section 1. The Governor by a request in writing, or either House of the Legislature by a resolution of such House, may obtain written opinion of the Justices of the Supreme Court of Alabama, or a majority thereof, on important constitutional questions and

"Sec. 2. The opinion of the Justices of the Supreme Court herein provided for shall not be binding upon the state or any department thereof, nor even upon the departments requesting it, or the Justices giving the opinions; but such opinions shall be advisory merely. The object and purpose of this act, being to give more confidence and assurance to the validity and constitutionality of important acts or contemplated acts of the Governor and the Legislature, and to declare the public policy of the state as to requesting and giving opinions of the Justices of the Supreme Court as herein provided.

"Sec. 3. The Justices of the Supreme Court may request briefs from the Attorney General, and may receive briefs from other attorneys as amicus curiæ, as to such questions as may be propounded to them for their answers.

"Approved Feb. 13, 1923."

Interpreting the act according to its manifest effects, these conclusions must, of necessity, prevail: (a) That the act does not at all contemplate the advice or the advisory opinions of the Justices upon any matter relating to the wisdom, desirability, or policy of prospective legislative or executive action; (b) that the merely advisory opinions contemplated are those of the individual Justices, not of the Supreme Court of Alabama in its judicial capacity; (c) that specific inquiries, within the intent of the act, must involve or concern concrete, important constitutional questions upon matters or subjects of a general public nature, as distinguished from questions involved in the ascertainment or declaration of private right or interest; (d) and that responses to questions within the purview of the act are designed to be advisory, consultative only, not concluding or binding the Governor or the House or Houses propounding inquiries or the Justices responding thereto.

The act avows its own object and purpose to be "to give more confidence and assurance to the validity and constitutionality of important acts or contemplated acts of the Governor and the Legislature, and to declare the public policy of the state as to requesting and giving opinions of the Justices of the Supreme Court as" in the act provided. In aid of the public service contemplated the Justices are authorized to request briefs from the Attorney General and to receive briefs from attorneys intervening amicus curiæ.

Since the Legislature possesses the power to prescribe and to define the authority, duties, and functions of the Governor and the Justices (except as restrained by the Constitution), the act invests the Governor and the Houses with the authority to obtain the advisory opinions of the Justices or a majority of them-in respect of "important constitutional questions," propounded as the act contemplates-and imposes upon the Justices an obligation to consider such questions as emanate from the sources the act defines; but the determination of the inquiry, whether the question or questions so propounded are within the stated purview of the act, is an inquiry addressed to and determinable alone by the Justices exercising, each for himself, his judgment upon the inquiry whether the question or questions properly propounded are within the purview of the act. Such questions as are thus determined to be within the purview of the act should and will be accorded appropriate response by the Justice or Justices so concluding.

The performance by the Justices of the function the act contemplates is nonjudicial; this for the obvious reason that advisory opinions given do not conclude or vindicate any right or remedy, result in no judgment or decree, bind no one whatsoever. Laughlin...