In re Opinions of the Justices

• Decision Date: 23 March 1936
• Docket Number: 37
• Citation: 166 So. 710,232 Ala. 60
• Parties: In re OPINIONS OF THE JUSTICES.
• Court: Alabama Supreme Court

166 So. 710

232 Ala. 60

In re OPINIONS OF THE JUSTICES.

No. 37

Supreme Court of Alabama

March 23, 1936

Questions propounded by the House of Representatives to the Justices of the Supreme Court, under Code 1923, § 10290.

Questions answered.

GARDNER BOULDIN, and BROWN, JJ., dissenting in part.

Act to legalize and tax alcoholic liquors subject to favorable vote in general election held not unconstitutional as delegation of legislative power.

"Resolution.

"HJR 27.

"By Mr. Harrison

"Be it resolved by the House of Representatives, that the following questions be propounded to the Supreme Court of the State of Alabama touching pending legislation.

"1st. The call of the Governor for the convening of the present extraordinary session of the Legislature contained the following:

" 'To provide sufficient revenue for the running of the schools and to enable the State, County and City governments to function adequately.'

"2nd. Does the attached bill, as a substitute for House Bill 21 now on the calendar of the House come within the Governor's call as set out above? Copy of said call is hereto attached.

"3rd. Does Section 29 of said Substitute violate any provision of the Constitution, and would the law become effective if passed by the Legislature regardless of the outcome of the referendum provided in said section 29 and the preceding sections 28, 27, 26 and 25?

"4th. Is Substitute for House Bill No. 180, copy of which is hereto attached, within the call of the Governor?

"5th. Does the same provision or similar provisions of Substitute for House Bill No. 180 now pending, copy of which is hereto attached, render said bill violative of any constitutional inhibition?

"This Resolution is passed and this request is made by the House of Representatives for an opinion under section 10290 et seq. as amended, Code of Alabama 1923."

The following is the substance of the proclamation of the Governor calling the Legislature into special session:

"Whereas, in the opinion of the Governor of the State of Alabama, an extraordinary occasion exists which demands the convening of the Legislature of Alabama in extraordinary session as prescribed by section 122 of the Constitution of Alabama of 1901; "Now, therefore, I, Bibb Graves, as Governor of the State of Alabama, do hereby proclaim and direct that the Legislature of the State of Alabama convene in extraordinary session at the seat of Government in Montgomery, Alabama, at 10:00 A.M. on Tuesday the 11th day of February 1936, and I do hereby designate the following subjects and matters to be considered and acted upon by said Legislature in extraordinary session assembled:

"1st. To provide sufficient revenue for the running of the schools and to enable the State, County and City governments to function adequately.

"2nd. To provide for the reduction in the price of private automobile licenses.

"3rd. To consider such amendments to the Alabama Social Security and Labor Laws as are necessary to permit the various Social Security and Labor Departments of Alabama to function in accordance with the Federal Security and Labor Program.

"4th. To authorize and empower the Highway Commission, with the approval of the Governor, to make rules and regulations concerning the operation of trucks on the public roads of Alabama."

The title and first section of the proposed act are as follows:

"A Bill to be entitled An Act to legalize and regulate the manufacture, sale and possession of alcohol, and alcoholic and malt beverages in Alabama; to create the office of Alcoholic Beverage Commissioner, to fix his term of office, compensation, and powers, and provide for his appointment; to provide and levy a license upon the sale of alcohol and alcoholic and malt beverages, and to levy an excise tax thereon, and to regulate their manufacture, possession, sale and transportation, and to provide for the general revenue of the State of Alabama; and to repeal all laws in conflict with this Act.

"Be it enacted by the Legislature of Alabama:

"Alcoholic Beverages--State Police Powers.

"Section 1. That this Act shall be deemed an exercise of the police powers of the State for the protection of the economic welfare, health, peace and morals of the people of the State, and to prohibit forever the open saloon; and it is hereby declared that all the provisions of this Act and the classifications and differentiations herein made and/or authorized to be made, are actually and substantially related to the accomplishment of the object of this Act and necessary to effectuate its purpose; and it is declared that alcohol and all beverages containing alcohol shall be subject to the provisions of this Act; and all of the provisions of this Act shall be liberally construed for the accomplishment of this purpose."

The bill, among other things, creates an alcoholic beverage commission, and prescribes in detail its duties with respect to regulations, the issuance of permits, and the amounts to be collected as license fees and excise taxes.

Sections 44-47 provide for an election for the purpose of securing the views of the qualified electors of the state upon the question: "Do you favor the taxation and legalization of spirituous, vinous and malt beverages in the State of Alabama in accordance with the provisions of House Bill No. 180 approved ______, 1936?"

Section 48(a) reads:

"If the majority vote on Question No. 1 on the ballot is 'Yes,' then this Act shall become effective on the first day of the month next after the returns from said election shall have been opened, and counted in the presence of the Governor, Secretary of State and Attorney General, or two of them; but if the majority vote on Question No. 1 on the ballot is 'No,' then this Act shall become null and void and of no effect."

By subdivision (b) provision is made for county elections, in event the majority vote upon the question set out above is "Yes." Subdivision (c) provides that, if the majority vote in any county upon said question be "No," then the provisions of the act shall not be held to be applicable to such county.

In re Substitute for House Bill No. 180.

"To the Hon. Speaker and Members of the House of Representatives of Alabama, Montgomery.

Sirs:

While distinctions have been drawn between "revenue bills" which by section 70, Constitution, shall not be passed during the last five days of the session and bills to raise revenue (Harris v. State, 228 Ala. 100, 151 So. 858; In re Opinions of Justices, 223 Ala. 369, 136 So. 589; State ex rel. Ward v. Henry, 224 Ala. 224 [18], State ex rel. Franklin County v. Hester,

224 Ala. 460, 140 So. 744; Woco Pep Co. v. Butler, 225 Ala. 256, 142 So. 509; Southern Ry. Co. v. Mitchell, 139 Ala. 629, 37 So. 85), we do not think that the first feature of the Governor's call, dated February 8, 1936, should be construed to limit the Legislature to "revenue bills" as thus described; but that it also includes a bill whose main purpose is to raise revenue. But, when the main purpose is as described in section 1 of the substitute for House Bill 180, referred to in your inquiry, it is clear that raising revenue is merely incidental to the purpose there defined. Kennamer v. State, 150 Ala. 74, 43 So. 482; 54 Corpus Juris, 744.

An incidental provision by which revenue is raised cannot be sufficient to come within the Governor's call, when the bill has a larger purpose and is intended to provide for the general welfare of the people within the police power of the Legislature. Especially is this true when the whole policy of the state toward an important police regulation is changed before there can be provision for revenue in that respect. The Governor's call gave no notice that such was intended. We think it is not within the call.

We note you also inquire whether the act will be in violation of the Constitution for that it shall not become operative until the referendum there provided shall be had and result in favor of its approval.

In this respect we have often held that, when an act is complete in itself, it can be made to depend upon some contingency for its operation to become effective. In re Opinions of the Justices, 227 Ala. 291, 149 So. 776; Porter Coal Co. v. Davis (Ala.Sup.) 165 So. 93; Ward v. State, 154 Ala. 227, 45 So. 655; Ex parte Hall, 156 Ala. 642, 47 So. 199; McNiell v. Sparkman, 184 Ala. 96, 63 So. 977. And it has been applied so as to make the operation of liquor laws in the respective counties dependent upon elections provided by the Legislature. State ex rel. Crumpton v. Montgomery, 177 Ala. 212-226, 59 So. 294.

Chief Justice Cooley, in his work on Constitutional Limitations (8th Ed.) pp. 238, 239, says: "If it is not unconstitutional to delegate to a single locality the power to decide whether it will be governed by a particular charter, must it not quite as clearly be within the power of the legislature to refer to the people at large, from whom all power is derived, the decision upon any proposed statute affecting the whole State? And can that be called a delegation of power which consists only in the agent or trustee referring back to the principal the final decision in a case where the principal is the party concerned, and where perhaps there are questions of policy and propriety involved which no authority can decide so satisfactorily and so conclusively as the principal to whom they are referred?"

He then says that, if the decision of the question is to depend upon the weight of judicial authority, it would be against the power to submit the question to the vote of the whole state. He proceeds to give the views of both sides of the question. Perhaps more states have followed Barto v. Himrod (1853) 8 N.Y. 483, 59 Am.Dec. 506, than have taken a...