Opinion of the Justices

• Decision Date: 23 December 1959
• Docket Number: No. 169,169
• Citation: 116 So.2d 588,270 Ala. 147
• Parties: OPINION OF THE JUSTICES.
• Court: Alabama Supreme Court

Page 588

116 So.2d 588

270 Ala. 147

OPINION OF THE JUSTICES.

No. 169.

Supreme Court of Alabama.

Dec. 23, 1959.

The Honorable Chief Justice and Associate Justices

Supreme Court of Alabama

Judicial Building

Montgomery, Alabama

Gentlemen:

Act No. 126 adopted at the Second Special Session of the Legislature of Alabama of 1959 and approved on August 24, 1959, authorizes the creation of a public corporation and, for the purpose of constructing and improving public school and college buildings in the state, including the acquisition of sites and equipment therefor, grants to such corporation power to issue its bonds in anticipation of the receipt of a portion of the revenues devoted by law to educational purposes.

Pursuant to the provisions of Section 34 of Title 13 of the Code of Alabama of 1940, I respectfully request your opinion in answer to the following important constitutional question:

Is the said Act No. 126 invalid as an act creating or incurring a new debt against the state, or providing for the creation thereof, within the meaning of Section 213 of the Constitution of Alabama, as amended?

Respectfully yours, John Patterson Governor

JP:k

White, Bradley, Arant, All & Rose, Birmingham, filed a brief amici curiae with the Justices.

Honorable John Patterson, Governor

State Capitol

Montgomery, Alabama

Dear Sir:

In your communication you propound to the Justices the single question whether or not Act No. 126, Second Special Session of the Legislature of 1959 creates a new debt against the State within the inhibition of Section 213 of the Constitution. We address our attention to that inquiry.

It has been the policy of the Justices of this Court, as announced in Opinion of the Justices, 267 Ala. 110, 100 So.2d 565; Id., 264 Ala. 452, 88 So.2d 778, among others, to refrain from rendering advisory opinions upon statutes already enacted, as distinguished from pending legislation. Our refusal to answer such inquiries was based upon the reasoning that their solution should be had in adversary proceedings and also that there was no occasion for the advice of the Justices to the Governor as a guide for his action where he had already acted. We have not, however, made this policy to be an unvarying rule, but have given our opinions upon statutes already passed in those cases in which it seemed to us that an advisory opinion was necessary for the guidance of the Governor in taking some affirmative action required by the statutes. See, for example, Opinion of the Justices, 247 Ala. 663, 26 So.2d 103.

Since the statute here involved does make approval by the Covernor essential to the vitality of the Act in certain of its features such as the application of the revenues appropriated and the issuance of bonds (Act No. 126, §§ 9, 10), we have concluded that we should accede to your request for an opinion.

In essence Act No. 126 is this: The Director of Finance, the Commissioner of Revenue, the Attorney General, State Auditor, State Treasurer, and State Superintendent of Education are authorized to become a corporation to be known as the Alabama Education Authority. The authority is vested with power to provide for the construction, reconstruction, improvement, alteration and equipment of public school and college buildings and to acquire sites therefor. To this end the Authority is clothed with power to issue and sell bonds. These bonds are not to constitute any obligation or debt of the State, and to secure the same sales tax and use tax 'required by law to be paid into the Alabama Special Education Trust Fund', after deducting specified prior charges as set out in § 11 of said Act No. 126, are pledged.

The taxes required by law to be paid into the Special Educational Trust Fund Consist of the residue, after payment of cost of collection and certain specifed prior payments, of the original Sales Tax Act, as amended in 1936-1937 (Acts Sp.Sess. 1936-1937, pp. 1, 125) and Act No. 100, Approved August 18, 1959.

We are of the opinion that your question should be answered in the negative for the reason that the current of opinion in this jurisdiction has clearly and consistently resolved any doubt as to the inapplicability of Section 213 of our Constitution to a situation such as that presented be Act No. 126, supra. Said Section 213 has been confined to the State itself or to those agencies vested with power to bind the State. It has been repeatedly held that a public corporation is an entity separate and distinct from the State, and that debts of such corporation are not the debts of the State, within the purview of Section 213, supra. It has been held that such corporation may issue bonds to obtain funds for certain authorized purposes and pledge anticipated revenues derived from rentals or like income or from special taxes levied and appropriated by stat...