Opinion of the Justices, In re

• Decision Date: 21 July 1950
• Docket Number: No. 113,113
• Citation: 254 Ala. 166,47 So.2d 643
• Parties: In re OPINION OF THE JUSTICES.
• Court: Alabama Supreme Court

Page 643

47 So.2d 643

254 Ala. 166

In re OPINION OF THE JUSTICES.

No. 113.

Supreme Court of Alabama.

July 21, 1950.

The Honorable Chief Justice and Associate Justices of the Supreme Court of Alabama

Montgomery, Alabama

Gentlemen:

Important constitutional questions have arisen in connection with the validity and interpretation of the constitutional amendment proposed by Act No. 473 adopted at the 1949 Regular Session of the Legislature of Alabama (General Acts of 1949, page 690).

Notice of the election upon that amendment was given by me by proclamation published in a newspaper published in each county of the state once a week for four successive weeks. In each county except Baldwin, the last of the four publications was made either (a) during the period of seven days immediately preceding December 13, 1949, the date of the election, or (b) during the calendar week immediately preceding the calendar week in which the election was held. In Baldwin County the dates of the four publications were the 10th, 17th, and 24th days of November, 1949, and the 1st day of December, 1949, the last publication thus occurring twelve days preceding the date of election and three days earlier than the calendar week immediately preceding the week during which the election was held.

At the election held on December 13, 1949, 23,154 of the qualified electors of the State of Alabama voting upon said amendment voted in its favor, and 20,336 voted against it, the amendment having thus been approved by a majority of 2,818 of the qualified voters in the state. The total number of qualified voters in Baldwin County at the time of the said election was in excess of 6,000. The total number of votes cast in Baldwin County upon said amendment was 478, of which 296 votes were in favor of the amendment and 182 against it.

Pursuant to the provisions of the amendment, an election was held on April 11, 1950 in the Courtland School District in Lawrence County upon the increase of indebtedness, the issuance of bonds and the increase in taxation provided for in the amendment. The majority of the qualified electors of the Courtland School District voting at said election authorized the proposed increase of indebtedness, the proposed issuance of bonds (aggregating $90,000 in principal amount), and the proposed increase in the rate of taxation; the vote on said proposals having been 191 for and 10 against.

On February 24, 1950, the Board of Education of Lawrence County adopted a resolution determining the matters and facts required by the said constitutional amendment to be determined upon and made public, including the period over which the proposed bonds to be issued will mature. The said resolution was published in the Moulton Advertiser, a newspaper published in the county on the 9th, 16th, 23rd and 30th days of March, 1950. A publisher's affidavit respecting the publication of said resolution is attached to this letter.

A notice of the said election held on April 11, 1950 was published in the Moulton Advertiser on the 9th, 16th, 23rd, and 30th days of March, 1950. A typographical error occurred in the said notice so that the maturity dates of the proposed bonds were incorrectly set forth. A publisher's affidavit respecting publication of said notice is also attached.

The maturity schedule set forth on the ballot used at said election on April 11, 1950, described the proposed bonds as maturing in the following aggregate principal amounts on February 1 in the following years: $2,000 in 1952 to 1954, inclusive; $3,000 in 1955 to 1966, inclusive; and $4,000 in 1967 to 1978, inclusive. The same maturity schedule is set forth in said resolution adopted on February 24, 1950 and published as aforesaid. The maturity schedule set forth in said notice as published was the same as that shown on the ballot and in said published resolution, except that the numerals '1956' appeared instead of '1966' in the phrase '1955 to 1966, inclusive.'

Pursuant to the provisions of Title 13, Section 34, Code of Alabama of 1940, I respectfully request that you answer the following important constitutional questions:

1. Is the said constitutional amendment invalid because of the fact that notice of the election on December 13, 1949 upon said amendment was published in Baldwin County on the following dates only, viz: the 10th, 17th and 24th days of November, 1949, and the 1st day of December, 1949?

2. Do the provisions of the constitutional amendment respecting the calling of the election upon the increase of indebtedness, the issuance of bonds and the increase in rate of taxation require that the maturity schedule of the proposed bonds be set out in the published notice of said election? If so, was said election held on April 11, 1950, rendered invalid by the typographical error in setting forth in said public notice the maturity schedule of the proposed bonds?

Respectfully yours,

JAMES E. FOLSOM

Governor of Alabama

His Excellency, James E. Folsom

Governor of Alabama

State Capitol

Montgomery, Alabama

Dear Sir:

Your inquiry of June 2, 1950, regarding the validity and interpretation of the constitutional amendment proposed by Act No. 473, General Acts 1949, p. 690, is dealt with in the order in which the questions are propounded.

I.

Your first question seeks our opinion regarding the effect on the amendment where there has not been a literal compliance with § 284 providing for notice of such election to be 'published in every county * * * for at least four successive weeks next preceding the day appointed for such election.' We note from your letter that the defection was that in one county, Baldwin, the last published notice of the proposed election was made on the twelfth day preceding the date of the election.

We have answered inquiries of this character and the court has also considered the question and rested decision on grounds other than now considered. Opinion of the Justices, 251 Ala. 78, 36 So.2d 499; Doody v. State, ex rel. Mobile County, 233 Ala. 287, 171 So. 504. But on a careful reconsideration of the subject, we are of the opinion that no judicial inquiry can now be undertaken to test the validity of the amendment on the ground that the terms of § 284 as regards the giving of notice of the election were not complied with. Being so, no important constitutional question inheres and it therefore becomes unnecessary to answer categorically that phase of your inquiry. We will seek to exposit the theory on which we rest our decision.

Section 284, as amended, stipulates, inter alia, that if, after the votes in the election on the amendment have been canvassed, tabulated and returned to the secretary of state and there counted, it shall appear that a majority of the qualified electors who voted at such election upon the proposed amendment voted in favor thereof, such amendment 'shall be valid to all intents and purposes as parts of this constitution' and that 'the result of such election shall be made known by proclamation of the governor.'

We entertain the view that after the amendment has thus progressed to that stage of having been so adopted and become a part of the organic law, namely, has been declared by the quoted constitutional prescriptions to be 'valid to all intents and purposes as parts of this constitution,' no one can question its validity in any collateral proceeding on a matter dehors the record. Stated another way, when the proceeding has reached this stage, unless invalidity by reason of not having followed a constitutional mandate appears on the face of the record, it cannot be impeached. This is a well known principle firmly embedded in all jurisprudence.

And we may observe, also, there is now at this stage of the matter no method for a direct attack. Savage v. Wolfe, 69 Ala. 569; Echols v. State ex rel. Dunbar, 56 Ala. 131.

True, the inquiry of whether or not the organic law has been validly and effectually amended is a judicial question, Collier v. Frierson, 24 Ala. 100, and if it should appear from the record that those matters dictated by the constitution for effecting its amendment were transacted in violation thereof, then the amendment may be collaterally assailed to test its validity. Jones v. McDade, 200 Ala. 230, 75 So. 988. But if there perhaps be irregularities in complying with a constitutional prescription, which matters do not or are not required to appear of record, sucn as that the bill had three readings or (in the case now considered) that the requisite notice of the election was not carried in each county, in absence of an affirmative showing on the record to the contrary, it will be presumed that the constitutional mandates were followed. Jones v. McDade, supra, (2), (9).

This principle has long been recognized. Sustentive thereof are the early cases of Harrison v. Gordy, 57 Ala. 49; Walker v. Griffith, 60 Ala. 361; Clarke v. Jack, 60 Ala. 271; McKemie v. Gorman, 68 Ala. 442, where it was held that in the absence of an affirmative showing to the contrary (in the legislative journals) it would be presumed that proper notice required by the constitution as a prerequisite to passing a special or local law was duly given. Constitution 1875, § 24, art. 4.

Much the same rationale underlies the decisions establishing the general text in 16 Corpus Juris Secundum, Constitutional Law, § 10, page 46 (though this court does not fully adopt such a theory), that 'the determination of whether or not an amendment has been adopted is a judicial question and, therefore, the decision of the canvassing officers may be inquired into by the courts,' but that 'in a collateral proceeding, the certificate of the political authorities that an amendment was duly ratified is conclusive.' See Kingsbury v. Nye, 9 Cal.App. 574, 99 P. 985; Armstrong v. King, 281 Pa. 207, 126 A. 263; In re McConaughy, 106 Minn. 392, 119 N.W. 408(1). Cf. also Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217(3), 66 L.Ed. 505; Coleman v....