State v. Manley

• Decision Date: 02 November 1983
• Parties: The STATE of Alabama and Don Seigelman, as Secretary of the State of Alabama v. Richard S. MANLEY. Tom BRASSELL, as Comptroller of the State of Alabama v. Richard S. MANLEY. 83-1, 83-81.
• Court: Alabama Supreme Court

Page 864

441 So.2d 864

The STATE of Alabama and Don Seigelman, as Secretary of the State of Alabama v. Richard S. MANLEY.

Tom BRASSELL, as Comptroller of the State of Alabama v. Richard S. MANLEY.

83-1, 83-81.

Supreme Court of Alabama.

Nov. 2, 1983.

Supplemental Dissenting Opinion,

Nov. 30, 1983.

Charles A. Graddick, Atty. Gen., and L. Tennet Lee, III, Sp. Asst. Atty. Gen., for appellants.

T.W. Thagard, Jr. and David R. Boyd of Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Montgomery, for appellees.

Robert Muncaster, pro se.

Joseph H. Johnson, Jr. and David W. Spurlock, Birmingham, and J. Marvin Albritton Andalusia, and James D. Pruett, Gadsden, and Hugh W. Roberts, Jr., Tuscaloosa, amicus curiae on behalf of Richard S. Manley.

P. Nicholas Greenwood of Bradley, Arant, Rose & White, Birmingham, and Caddell, Shanks, Harris, Moores & Murphree, Decatur, amici curiae for Richard S. Manley.

Lawrence Dumas, Jr., Fournier J. Gale, III, & Cathy S. Wright of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for amicus curiae Associated Industries of Alabama, Inc.

Oakley Melton, Jr., Joe Espy, III and Ken Wallis, Legal Advisor, and Stephen N. Dodd, Asst. Legal Advisor, Montgomery, for Governor George C. Wallace, amicus curiae.

Drayton N. Hamilton, Montgomery, for amicus curiae Alabama League of Municipalities.

William M. Slaughter and Mark E. Ezell of North, Haskell, Slaughter, Young, & Lewis, Birmingham, amicus curiae on behalf of Richard S. Manley.

ADAMS, Justice.

These consolidated appeals are from a declaratory judgment and permanent injunction entered in the Circuit Court for Montgomery County.

On July 25, 1983, the Alabama Legislature passed Act 83-683, which proposed a new constitution for the State of Alabama. The Act provided that the new constitution would be submitted to the electorate for adoption in the same manner as an amendment under § 284, as amended, Alabama Constitution of 1901, at the next general election, to be held November 8, 1983. It also provided that the entire text of the proposed constitution would be published in each county, in a newspaper of general circulation, for four consecutive weeks prior to that election.

The action from which these appeals arise was filed on September 13, 1983. A consolidated hearing pursuant to Rule 65(a)(2), A.R.Civ.P., was held on September 26. The matter was submitted to the trial court on stipulations, the pleadings, briefs of counsel, and oral argument.

Final judgment was entered September 30, 1983, declaring that Act 83-683 is unconstitutional, and enjoining the defendants from proceeding with the election on the adoption of the instrument and from spending any state funds in connection with the submission of the document to the electorate. An appeal was filed on that day. In addition to an appeal on the merits, appellants State of Alabama and Don Siegelman, as Secretary of the State of Alabama, filed a motion to stay the injunction, so that publication could begin pending this court's decision on the merits. On October 3, 1983, following oral argument on the motion, this court granted the stay of the injunction.

A second appeal from the same judgment was subsequently filed by Tom Brassell, as Comptroller of the State of Alabama. The two appeals were consolidated, and in this opinion all appellants are referred to collectively as "the appellant" or "the State."

The State raises the following issues on appeal:

I. Do § 284-287 of the Constitution of 1901 provide the exclusive means by which the constitution may be changed?

II. May the constitution proposed by Act 83-683 be submitted to the people as an amendment to the Constitution of Alabama of 1901?

III. May existing restrictions on the procedure for adopting a new constitution be removed and a different procedure authorized at the same time the new constitution is approved?

We answer the first question "yes." We answer questions two and three "no." The judgment of the trial court is affirmed.

I.

The State cites three cases from other jurisdictions in support of its argument that §§ 284-287 of Art. XVIII of the Constitution of 1901 do not provide the exclusive means by which the constitution may be changed. We shall consider each of these cases in chronological order, indicating our reasons for finding them wholly unpersuasive.

A

The first case is Wheeler v. Board of Trustees of Fargo Consolidated School District, 200 Ga. 323, 37 S.E.2d 322 (1946). In Wheeler, the Supreme Court of Georgia considered whether the Georgia Legislature's proposal to the electorate of a new constitution was a permissible manner of revising the constitution. The court concluded that it was. Nevertheless, we do not think it correct to accord that decision any weight in deciding the case now before us, for the facts of this case are readily distinguishable from those in Wheeler.

The constitution in Wheeler had been ratified by the people of Georgia in a general election prior to the attack on its validity. The court indicated that "every reasonable presumption, both of law and fact, is to be indulged in favor of the validity of a constitution when it is attacked after its ratification by the people." 200 Ga. at 333, 37 S.E.2d at 329. In accordance with this rule, the court in Wheeler chose to presume that the people of Georgia had not intended to limit themselves to use of the convention method for providing a new constitution by any provisions in their 1877 constitution. 200 Ga. at 334, 37 S.E.2d at 329.

The constitution proposed by our legislature is not to be accorded such a presumption as that in Wheeler. It has not been approved by a majority vote of the people of Alabama. Therefore, we think that the "authoritative value" of Wheeler is greatly lessened. Smith v. Cenarrusa, 93 Idaho 818, 828, 475 P.2d 11, 21 (1970) (McFadden, C.J., dissenting).

The opinion in Wheeler also suffers from inclusion of the flawed reasoning that the will of the people, expressed by their vote in a "legally held election," obviates a concern as to whether procedures for the proposal of constitutional change that are specified in the constitution are followed. 200 Ga. at 334, 37 S.E.2d at 329. The Wheeler court expressed a belief that if it voided the new constitution because of the legislature's failure to effect the proposal of change by one of the means delineated in the constitution, it would be limiting the sovereign power of the people. 200 Ga. at 331, 37 S.E.2d at 328. Such thinking is indisputably contrary to this court's holding in the case of Collier v. Frierson, 24 Ala. 100 (1854), that failure to comply strictly with the amendment procedure required by the constitution is "fatal" to a resolution of the legislature, a favorable vote of the people notwithstanding.

B

Gatewood v. Matthews, 403 S.W.2d 716 (Ky.1966), was cited by appellant in support of its argument that §§ 284-287 of the Constitution of 1901 do not define the exclusive means by which the Constitution may be changed. ¹ In Gatewood the Kentucky Court of Appeals considered whether by provisions in their constitution the people had "imposed upon themselves exclusive modes of amending or of revising their Constitution." 403 S.W.2d at 718. The court concluded that they had not done so.

The majority of the court in Gatewood relied upon the opinions rendered in the case of Wheeler v. Board of Trustees of Fargo Consolidated School District, supra, and In re Opinion to the Governor, 55 R.I. 56, 178 A. 433 (1935), in deciding that the provisions in the Kentucky constitution, which are similar to those of the Constitution of 1901 here in question, were not the only methods available for altering the constitution. Having previously outlined the deficiencies of the Wheeler opinion, we address directly Gatewood's reliance on the Rhode Island opinion.

The majority in Gatewood correctly noted that the Rhode Island Supreme Court, in the above-named opinion to the Governor, held that the amendatory language of its constitution did not specify the exclusive mode of revision. ² However, even a cursory reading of the Rhode Island Supreme Court's decision necessitates the conclusion that the court did not approve of legislative circumvention of the established processes of constitutional revision, as attempted by the Kentucky legislature in Gatewood, and by our legislature in the instant case.

In its 1935 opinion to the Governor, the Rhode Island Supreme Court was required to construe Section 1 of Article I of its constitution, which read as follows:

In the words of the Father of his Country, we declare that "the basis of our political systems is the right of the people to make and alter their constitutions of government; but that the constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all."

In re Opinion to the Governor, 55 R.I. at 61, 178 A. at 436. The court interpreted this language in pari materia with the last sentence of Section 1 of Article IV, which read, "The General Assembly shall pass all laws necessary to carry this constitution into effect." 55 R.I. at 61, 178 A. at 437. The court concluded that pursuant to these sections of the constitution "it is the duty of the general assembly to pass whatever laws may be needed, at any time or from time to time, to enable the people by an explicit and authentic act to make a new constitution or to alter the present one." 55 R.I. at 63, 178 A. at 437-38.

The court's clarifications of the above holding concerning the Rhode Island legislature's responsibility in the formulation of a new constitution, as stated in the following excerpts from the opinion, clearly indicate that our legislature has proposed the revision of the Constitution of 1901 in an unconstitutional manner. The court said:

The method of doing this [that is, the general assembly's means of satisfying its duty], which had been recognized as the...