Swaim v. Tuscaloosa County

• Decision Date: 12 June 1958
• Docket Number: 6 Div. 240
• Citation: 267 Ala. 509,103 So.2d 769
• Parties: Sam G. SWAIM v. TUSCALOOSA COUNTY.
• Court: Alabama Supreme Court

Page 769

103 So.2d 769

267 Ala. 509

Sam G. SWAIM v. TUSCALOOSA COUNTY.

6 Div. 240.

Supreme Court of Alabama.

June 12, 1958.

Ward & Ward, Tuscaloosa, for appellant.

Mize & Spiro and Henry H. Mize, Tuscaloosa, and White, Bradley, Arant, All & Rose, Wm. Alfred Rose, Ellene Winn and Robt. R. Reid, Jr., Birmingham, for appellee.

LAWSON, Justice.

By Act No. 38, adopted at the first Special Session of the 1956 Legislature (Acts of Alabama of 1956, p. 65), there was submitted to the qualified electors of this state a proposed amendment to the 1901 Constitution under which Tuscaloosa County might become indebted, in addition to all other indebtedness authorized prior to the adoption of the amendment, in an amount not to exceed $2,500,000 for the purpose of constructing and equipping a county courthouse and jail and acquiring land therefor and might sell and issue its interest-bearing bonds in evidence of such indebtedness. The election on the amendment, to which we will sometimes refer hereafter as the Tuscaloosa amendment and sometimes simply as the amendment, was held on Tuesday, November 6, 1956, and on November 15, 1956, the Governor of Alabama proclaimed the amendment ratified.

On August 20, 1957, Sam G. Swaim, a resident-taxpayer of Tuscaloosa County, filed his petition for declaratory judgment against Tuscaloosa County in the equity court of that county wherein he prayed that the court declare that the said Tuscaloosa County amendment was not lawfully adopted as an amendment to the Constitution of this state and that Tuscaloosa County cannot legally take any action thereunder.

The complainant attacked the validity of the amendment on the following two grounds:

(1) The publication in Bibb, Macon and Mobile Counties of the proclamation of notice of the election on the amendment was not published for at least four successive weeks next preceding the day appointed for said election, as required by that portion of $284 of the Constitution, as amended, which reads:

'* * * Notice of such election, together with the proposed amendments, shall be given by proclamation of the governor, which shall be published in every county in such manner as the legislature shall direct, for at least four successive weeks next preceding the day appointed for such election. * * *'

(2) That the language printed on the ballots used in the election did not sufficiently set forth the substance or subject matter of the amendment so as to indicate clearly the nature thereof, as required by that portion of § 285 of the Constitution, which reads:

'Upon the ballots used at all elections provided for in section 284 of this constitution the substance or subject matter of each proposed amendment shall be so printed that the nature thereof such be clearly indicated. * * *'

The trial court rendered a final decree wherein the amendment was declared valid as against the attacks made upon it by the complainant. From that decree the complainant has appealed to this court.

A justiciable issue between proper parties is here presented. Thompson v. Chilton County, 236 Ala. 142, 181 So. 701; Tuscaloosa County v. Shamblin, 233 Ala. 6, 169 So. 234.

Publication of Notice Proclamation

The Governor's proclamation of notice (herein called 'the notice proclamation') of the election on the amendment was published in a newspaper published in each of Bibb, Macon and Mobile Counties on October 4, 11, 18, and 25, 1956, each of which dates fell on a Thursday. Therefore, since the election on the amendment was held on Tuesday, November 6, 1956, the last of such publications was published neither (a) once in each of the four calendar weeks next preceding the calendar week in which said election was held, nor (b) once in each of the four seven-day periods immediately preceding the date of said election. See Opinion of the Justices, 251 Ala. 78, 36 So.2d 499, wherein each of the then Justices of this court expressed as his individual view that publication in either of the ways referred to in (a) and (b) above constitutes substantial compliance with the requirements of § 284 of the Constitution, as amended. There was disagreement on another point.

The amendment was not passed by a majority of the electors of the state in excess of the total number of qualified electors in Bibb, Macon and Mobile Counties or in excess of the total number of qualified electors in those counties who failed to vote on the amendment at the election on November 6, 1956. So our holding in Doody v. State ex rel. Mobile County, 233 Ala. 287, 171 So. 504, 506, does not answer the question presently before us. In that case we held that improper publication in one county (Walker) of the notice of the election on a proposed constitutional amendment did not render invalid the adoption of the amendment where the 'proposed amendment was adopted by the voters of the state by a majority considerably in excess of the total vote of Walker county.'

In 1950 the Governor requested an advisory opinion on two constitutional questions, one of which read:

'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?'

The constitutional amendment about which inquiry was there made was not passed by a majority of electors of the state in excess of the total number of qualified electors in Baldwin County or in excess of the total number of qualified electors in that county who failed to vote on the constitutional amendment at the election held on December 13, 1949. Like the situation here in Bibb, Macon and Mobile Counties, the last publication of the notice proclamation in Baldwin County was made twelve days prior to the election on the amendment and the other three publications were made at seven-day intervals preceding the date of said last publication. So the facts presented in the 1950 request for advisory opinion in regard to the question at hand were precisely the same as are involved in the instant case except that the erroneous publication appeared on one county instead of three.

The majority of the Justices declined to answer the question on the ground that it presented no important constitutional question, saying in part:

'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 our 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.

* * *

* * *

'In sum, the constitutional prescription as regards notice, as maybe some others relative to amending the organic law, is not required to be shown of record to have been observed and will be presumed to have been so where the proceedings have reached the stage now attained by the instant amendment. On collateral attack, therefore, matter dehors the record is not available to challenge its validity. Hence, unless their violation is brought under the judicial eye in a direct proceeding at the proper time, it would be unsound to permit it to be done later. If later, the question would arise, how much later? If one might be permitted at this time to contest in the courts the validity of the school amendment now considered, on that ground, at what later date might not a similar contest be undertaken? The evil in permitting such procedure is apparent.

'Our opinion is that the amendment under consideration cannot now be assailed for the defect noticed in Section 1 of your inquiry, of consequence of which it becomes unnecessary to further respond thereto.' In re Opinion of the Justices, 254 Ala. 166, 168-169, 47 So.2d 643, 646.

The writer of this opinion did not agree with the views expressed above, but in a special concurrence expressed the opinion that the constitutional amendment there involved was not invalid because of the erroneous manner in which the notice proclamation was published in Baldwin County because there had been a substantial compliance with the provisions of § 284 of the Constitution, as amended. The writer and Justices Goodwyn, Merrill and Coleman hold in the instant case that there was a substantial compliance with the provisions of § 284 of the Constitution, as amended, and that therefore the Tuscaloosa amendment is not invalid because of the erroneous manner in which the notice proclamation was published in Bibb, Macon and Mobile Counties. The doctrine of substantial compliance, upon which the writer of this opinion relied in his special concurring opinion in the 1950 advisory opinion, supra, appears to be the doctrine generally applied by the courts of this country where it appears that a failure to literally comply with constitutional provisions as to publication of notice cannot be reasonably said to have affected the result of the election. Mayer v. Adams, 182 Ga. 524, 186 S.E. 420; Hammond v. Clark, 136 Ga. 313, 71 S.E. 479, 38 L.R.A.,N.S., 77; Prohibitory Amendment Cases, 24 Kan. 700; State ex rel. Board of Fund Com'rs v. Holman, Mo., 296 S.W.2d 482; State ex rel. State Building Commission v. Smith, 335 Mo. 840, 74 S.W.2d 27; Fahey v. Hackmann, 291 Mo. 351, 237 S.W. 752; State ex rel. Hay v. Alderson, 49 Mont. 387, 142 P. 210; Swanson v. State, 132 Neb. 82, 271 N.W. 264; State ex rel. Thompson v. Winnett, ...