Opinion of Justices

• Decision Date: 13 October 1945
• Docket Number: 69.
• Citation: 23 So.2d 505,247 Ala. 195
• Parties: OPINION OF JUSTICES.
• Court: Alabama Supreme Court

23 So.2d 505

247 Ala. 195

OPINION OF JUSTICES.

No. 69.

Supreme Court of Alabama

October 13, 1945

The Honorable Chief Justice and

Associate Justices of the Supreme

Court of Alabama

Judicial Department

Montgomery 4, Alabama

Gentlemen:

Important constitutional questions have arisen in connection with Act No. 281, Senate Bill No. 1, approved July 9, 1945, Regular Session of the Legislature, 1945, which act creates a corporation known as the Alabama Public Hunting and Forestry Association, Inc.

Pursuant to Title 13, Section 34, Code of Alabama, 1940, I request your written opinion as to the following constitutional questions:

1. Would the incorporation of the Alabama Public Hunting and Forestry Association, Inc., authorized to be created by the above mentioned act, and the performance of the duties imposed upon the corporation in said act, be engaging the State in works of internal improvement in violation of Section 93 of the Constitution of 1901?

2. The title or preamble of said act provides that there shall be appropriated to said corporation from the general funds of the State the sum of $50,000 for the fiscal year beginning October 1, 1945, and a like sum for the fiscal year beginning October 1, 1946. In Section 13 of said act there is contained an appropriation of $300,000 conditioned upon the approval of the Governor. Does this variance between the title of the act and Section 13 of the body thereof violate Section 45 of the Constitution of 1901?

3. If your answer to question No. 2 is in the negative, and the condition of the treasury will permit, may I, as Governor legally authorize the State Comptroller to draw his warrant in the sum of $300,000 payable to said corporation?

For your convenience I herewith enclose copy of said Senate Bill No. 1, together with the legislative history of the adoption of said act.

Respectfully submitted

Chauncey Sparks

Governor of Alabama

Honorable Chauncey Sparks,

Governor of Alabama,

State Capitol,

Montgomery Alabama.

Dear Sir:

We acknowledge receipt of your communication of September 24 1945, in which you request our written opinion on certain constitutional questions in connection with Act No. 281 Senate Bill 1, Regular Session of the Legislature, 1945, approved July 9, 1945, which Act creates a corporation known as The Alabama Public Hunting and Forestry Association, Incorporated.

In reply we wish to advise that in our opinion: (1) The incorporation of The Alabama Public Hunting and Forestry Association, Incorporated, authorized to be created by the above mentioned Act, and the performance of the duties imposed upon the corporation in said Act, is not engaging the State in works of internal improvement in violation of § 93 of the Constitution of 1901; (2) the variance between the amount of the appropriation to the corporation as stated in the title of the Act and the amount of the appropriation to the corporation as stated in the body of the Act, referred to in your letter, does not violate § 45 of the Constitution of 1901, except as to the excess of the amount stated in the body of the Act over the total amount stated in the title; (3) if the condition of the State Treasury will permit, you, as Governor, may legally authorize the State Comptroller to draw his warrant in the sum of $50,000, payable to the said corporation, for the fiscal year beginning October 1, 1945, and his warrant for a like sum payable to the said corporation for the fiscal year beginning October 1, 1946.

It is axiomatic that the Legislature has all powers of legislation not limited by the Federal or State Constitution. It is also well established that it is the duty of the court to indulge every reasonable presumption in favor of the validity of the Acts of the Legislature. State v. Murphy, 237 Ala. 332, 186 So. 487, 121 A.L.R. 283; In re Opinion of the Justices, Ala.Sup., 22 So.2d 521.

Briefly stated, the purpose of the Act under consideration is to promote the health, comfort, safety and general welfare of the people of the State through the acquisition of lands within the State for hunting and fishing preserves and for the reforestation and conservation of forests. So long as the organic law is not violated, such legislative acts have been generally upheld. It is common knowledge that valuable wild life and forests would soon be exterminated if the State should fail to conserve these things and give aid to their reproduction. Krenz v. Nichols, 197 Wis. 394, 222 N.W. 300, 62 A.L.R. 466.

There will be found in Title 8, § 1 et seq., Code 1940, a group of statutes dealing in various ways with hunting, fishing and forestry. Section 172 et seq., Title 8, Code 1940, provide generally for State parks now owned or hereafter acquired and their maintenance and indicate that the purposes of such parks include, among other things, those things mentioned above. All of these statutes have been in force for a substantial period and some for a long time. We should have regard for this legislative attitude. While we will not accept the legislative construction as final, we will regard it as influential. Board of Revenue of Jefferson County et al. v. Huey et al., 195 Ala. 83, 70 So. 744.

Upon a consideration of the principles involved and the general purposes of the Act, we think that the Act in question in its general purposes is within the police power of the State. In re Opinion of the Justices, Ala. Sup., 22 So.2d 521; authorities, supra. This brings us to a consideration of the specific provisions of the Act and the question as to their violation of § 93 of the Constitution. The purpose of § 93 of the Constitution is well known and needs no restatement here. See In re Opinion of the Justices, supra.

In order to accomplish the purposes of the Act, the creation of a corporation as an arm or agency of the State is contemplated, with power to borrow money, issue bonds and make contracts. But in all such undertakings it is expressly provided that the general faith and credit of the State of Alabama shall not be pledged or any indebtedness incurred within the meaning or contrary to § 213 of the Constitution of 1901, as amended, Amend. No. 26. The plan is not violative of § 93. See Long v. Alabama Highway Corporation, 234 Ala. 142, 174 So. 41. It is true that there is no mandate from the people as there was in connection with highway improvement (see Rogers v. Garlington, 234 Ala. 13, 173 So. 372), but it is likewise true that the plan here promulgated in the interest of public health and the well-being of the people through wholesome outdoor recreation and the conservation of forestry, contemplates neither a prohibited internal improvement nor a private interest. Bird, Atty. Gen., v. Common Council of City of Detroit, 148 Mich. 71, 111 N.W. 860; Mayor and Aldermen of Wetumpka v. Winter, 29 Ala. 651. It is not the form of the plan, but its substance and purpose which is controlling. If the establishment of markets does not violate § 93, as was held by us in Re Opinion of the Justices, 22 So.2d 521, then there is no reason why the establishment of outdoor recreational and forestry conservation preserves should be violative of § 93. Both fall within the great reserve of the police power of the State.

But it may be suggested that the Act under consideration provides such powers of sale, lease and contract generally as to violate § 93 of the Constitution. We do not interpret the Act as authorizing the State to engage in dealing in real estate or its products in any way on a competitive basis with private enterprise. On the contrary, each transaction of the corporation under the Act must be reasonably related to the expressed purposes of the corporation in the public interest and for the public good. See In re Opinion of the Justices, Ala.Sup., 22 So.2d 521.

This brings us to a consideration of § 45 of the Constitution as applied to the Act. We judicially know the legislative records of the State. Accordingly we know that there was no variance between the title and the Act in the manner referred to in your inquiry, when the Act was introduced. The variance is the result of an amendment of § 13 of the Act during passage of the Act, without corresponding change in the title of the Act. Evidently the original idea was an annual appropriation for 1945 and 1946 to take care of the situation until the Legislature could further consider the matter when it convened in 1947, while the amendment is based on an appropriation immediately payable in a lump sum and conditioned on approval of the Governor.

The foregoing situation does not aid in meeting the requirements of § 45 of the Constitution because this section of the Constitution applies to the bill when it becomes enacted into law and not to 'bills upon their passage and during the consideration of the same by the Legislature.' Jackson v. State, 171 Ala. 38, 55 So. 118, 119.

In the case of Fuqua v. City of Mobile, 219 Ala. 1, 2, 121 So. 696, in discussing § 45 of the Constitution, this court said: 'One of the purposes of this constitutional provision was to prevent surprise or fraud upon the Legislature by means of provisions in bills of which the title gives no intimation, and which might, therefore, be overlooked and carelessly and unintentionally adopted. Lindsay v. United States Sav. & Loan Ass'n, 120 Ala. 156, 24 So. 171, 42 L.R.A. 783 * * *.'

It is clearly apparent that the title of the Act which provides a total appropriation of $100,000 gives no intimation of an appropriation of $300,000, as sought to be provided in the body of the Act. Accordingly we do not consider that you are empowered to authorize the State Comptroller to draw his warrant to the corporation in the sum of $300,000.

But even though § 13 of the Act...