It may be well to state that the record in this case was originally and in due course assigned to me. The opinion appearing as my dissent was prepared and read to all the justices, and concurred in by Justices SOMERVILLE and GARDNER. The opinion of the majority was thereafter announced, and the dissenting opinions (in which I concur) by Justices SOMERVILLE and GARDNER followed, before the opinion of the majority as extended on rehearing was announced. This will account for duplication on my part of the resolution or act of the Legislature proposing the amendment, provisions of section 284 of the Constitution, and a restatement of some of the grounds on which the adoption of the proposed amendment was challenged.
The purpose of the appeal is to determine the constitutional validity vel non of the road bond issue amendment, article 20, section 1A. Seay's Amendments to the Constitution of Alabama, pp. 13-15; Gen. Acts 1919, pp. 787-791. The bill was filed by A. M. Johnson, Jr., an automobile owner and resident taxpayer, seeking to enjoin and restrain John Craft, F. J. Cramton, J. B. Espy, Lloyd Hooper, O. T. Smith, John A. Rogers, Thomas E. Orr, Andrew G. Patterson, S. R. Batson, Marvin Pearce, Eugene A. Smith, and John A. Callan, individually and as members of the state highway commission and of the highway bond commission, and W. S. Keller, individually and as state highway engineer, from issuing, causing to be issued, selling, or offering for sale certain interest-bearing negotiable state bonds, issued, or proposed to be issued, under and by virtue of said amendment to the Constitution.
The resolution proposing the amendment is in form "an act," approved September 30, 1919. General Acts 1919, p. 787. Whether a proposed amendment to the Constitution be in form as "an act" or a joint resolution is immaterial, since its purpose is plain. Const. § 287; Dodd's Revision and Amendment of State Constitutions, p. 155. The preamble to the proposed amendment recites the necessity for the bond issue to maintain a permanent system of highways, and to secure the appropriation for said purpose by the national government. Section 2 is:
"That the following amendment of the Constitution of Alabama is proposed to be submitted to the qualified electors of the state for their ratification or rejection at an election to be held and called by the Governor after ninety days from the final adjournment of this session of the Legislature of which the amendment is proposed, which amendment is as follows, to wit" — setting it out as "Section 3. Article 20. Section 1A."
In section 4 it is provided that —
"It shall be the duty of the Governor to fix the date of said election and to give notice by proclamation to be published in one newspaper in each county in the state at least seven successive weeks next preceding to said election of the amendment proposed by this act *Page 406 to be submitted to the qualified electors of the state for this ratification or rejection"
And section 5 requires that at said election the qualified electors shall vote upon said amendment on the official ballot printed, etc., as therein stipulated, and —
"That the officers holding said election shall be the same and shall be appointed in the same manner and by the same officials as provided by the election law of the state for the appointment of officers to hold other general elections in the state and the election shall be held in all respects inaccordance with the law governing general elections and withthe constitutional provisions concerning amendment to thatinstrument."
The provisions of Section 284 of the Constitution of 1901 applicable to the resolution of the Legislature proposing the amendment are as follows:
"Amendments may be proposed to this Constitution by the Legislature in the manner following: The proposed amendmentsshall be read in the house in which they originate on threeseveral days, and, if upon the third reading three-fifths of all the members elected to that house shall vote in favor thereof, the proposed amendments shall be sent to the other house, in which they shall likewise be read on three severaldays, and if upon the third reading three-fifths of all the members elected to that house shall vote in favor of the proposed amendments, the Legislature shall order an election by the qualified electors of the state upon such proposed amendments, to be held either at the general election nextsucceeding the session of the Legislature at which theamendments are proposed or upon another day appointed by theLegislature, not less than three months after the finaladjournment of the session of the Legislature at which theamendments were proposed. 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 suchmanner as the Legislature shall direct, for at least eightsuccessive weeks next preceding the day appointed for suchelection. On the day so appointed an election shall be held for the vote of the qualified electors of the state upon the proposed amendments. If such election be held on the day of the general election, the officers of such general election shall open a poll for the vote of the qualified electors upon the proposed amendments; if it be held on a day other than that ofa general election, officers for such election shall be appointed; and the election shall be held in all things inaccordance with the law governing general elections. * * *"
A preliminary observation may be made of the development of the amendment of state Constitutions, that it has been toward confining legislative action simply to the proposal of amendments; the vote of the people being the final determination as to whether an amendment becomes or fails to become a part of the fundamental law of the state. It is of historical value that the first suggestion for amendment upon proposal of the Legislature (approved by the people) was that prepared by Mr. Jefferson (1776) to the Virginia Constitution, and in 1779 such a proposal was rejected by the people of New Hampshire. Ford's Writings of Jefferson, ii, 20, 30; N.H. Town Papers, ix, 841. The Alabama Constitution of 1819 made provision by which the people should vote directly upon proposed amendments, but to the next succeeding Legislature was left the determination as to whether an amendment specifically approved by the vote of the people should be adopted into the Constitution. Such provisions were contained in the Constitutions of 1865 and 1867, and a construction of such provision was dealt with in Collier, Governor, v. Frierson,24 Ala. 100, and will be adverted to later in this opinion.
Under the Constitution of 1875 was employed the ballot to enforce voting on amendments; that is to say, the Constitution of 1875 required that proposed amendments be submitted at a general election, and that in order to be adopted such amendment should receive the vote of a majority of all qualified electors of the state who voted for representatives. In submitting a proposal to the people in 1898, the Legislature provided (Laws 1896-97, p. 1202, § 3) that the ballot should have printed on it the words, "For Birmingham Amendment," and that —
"Any elector desiring to vote for said amendment shall leave said words intact upon his ballot, and any elector desiring to vote against said amendment shall evidence his intention to so vote by erasing or striking out said words with pen or pencil. The leaving of said words upon the ballot shall be taken as a favorable vote and the erasure or striking out of said words as aforesaid shall be taken as an adverse vote upon said amendment."
Upon such submission the amendment was proclaimed as having been carried. Challenging this method of its adoption, it was contended that the Constitution made necessary a vote either for or against the amendment, and that the method of submission of the proposed amendment by the Legislature made inaction a vote for the proposal. Our court declared that the voter had no constitutional right to a ballot which would permit him to abstain from voting upon such measure, and that the depositing of the ballot by the voter was itself the affirmative action in favor of the amendment, unless the contrary was indicated thereon as required by the act of submission. May Thomas Hdw. Co. v. Birmingham, 123 Ala. 306, 26 So. 537. It need not be observed that such method could not be employed under the present Constitution, which specifically requires a different form of ballot. Harris v. Walker, Supt., 199 Ala. 51, 74 So. 40. However, *Page 407 that decision was in line with other decisions by our court that had adopted a liberal construction of the Constitution and of the act or resolution of submission of a constitutional amendment to the people, as pertaining to amendments proposed and adopted by the required vote of the people, which is the final determination as to whether an amendment becomes or fails to become a part of the state's fundamental law. Dorman v. State, 34 Ala. 216, 235; Covington v. Thompson, 142 Ala. 98,107, 38 So. 679; Realty Inv. Co. v. City of Mobile, 181 Ala. 184,187, 61 So. 248; Dent et al. v. City of Eufaula,199 Ala. 280, 74 So. 369.
In considering the legislative history of Senate Bill (or the resolution) No. 218, it will be noted that it was passed in the respective houses upon the third reading by three-fifths vote of all members elected to that house who voted in favor thereof, and being sent to the other house, in which, it was likewise read on three several days, and upon a third reading therein, three-fifths of all members elected to that house voted in favor of the proposed amendment; that thereafter the same was signed by the respective presiding officers of both houses and sent to the Governor, who returned it to the Legislature with the suggested amendment, incorporated therein as a part of the proposed amendment, on September 27, 1919, the fiftieth and last legislative day. This suggestion by the Governor, appropriated and incorporated by the Legislature as a part of the proposed amendment to the Constitution, was the addition of the words "subject to the approval of the Governor," in the concluding paragraph of subdivision B, making it read:
"And all moneys derived from the sale of said bonds shall be expended as the Highway Department may direct, subject to theapproval of the Governor."
The record further shows that, after concurring in and adopting the suggested amendment by a three-fifths vote of all members elected to each house voting in favor thereof, the act proposing the amendment to the Constitution, as amended by the Legislature as aforesaid, was signed by the presiding officer of each house, and approved by the Governor three days after final adjournment of the Legislature, volume 2, Sen. Journal, p. 2528; volume 2, House Journal, p. 2845.
The inquiry first propounded for decision is: Can the Legislature delegate to the Governor the power to designate a particular day upon which the special election is to be held upon the proposed amendments to the Constitution, provided the particular day appointed by the Governor be within the time fixed by the Constitution?
It has been declared generally by the courts that Legislatures cannot delegate their legislative power, but may make laws which delegate to agencies of the government or officers thereof the authority to perform administrative functions which the Legislatures themselves might perform, and may authorize such officers in such administration to exercise "legislative discretion." Ex parte City of Birmingham, 199 Ala. 9,14, 74 So. 51; McNeill, Supt., v. Sparkman, Treas.,184 Ala. 96, 99, 63 So. 977; Whaley v. State, 168 Ala. 152,52 So. 941, 30 L.R.A. (N.S.) 499; Railroad Commission v. Ala. North. Ry. Co., 182 Ala. 357, 62 So. 749; Ward v. State, 154 Ala. 227, 45 So. 655; Tallassee Falls Mfg. Co. v. Comm. Court, 158 Ala. 263, 48 So. 354; Arver v. United States (Selective Draft Case) 245 U.S. 366, 389,38 Sup. Ct. 159, 62 L. Ed. 349, L.R.A. 1918C, 361, Ann. Cas. 1918B, 856; State ex rel. Smith v. Justice, 200 Ala. 483, 485, 76 So. 425; United States v. Grimaud, 220 U.S. 506, 31 Sup. Ct. 480,55 L. Ed. 563; Buttfield v. Stranahan, 192 U.S. 470,24 Sup. Ct. 349, 48 L. Ed. 525; Field v. Clark, 143 U.S. 649, 694,12 Sup. Ct. 495, 36 L. Ed. 294; Intermountain Rate Cases, 243 U.S. 476,37 Sup. Ct. 407, 61 L. Ed. 857; First National Bank v. Union Trust Co., 244 U.S. 416, 37 Sup. Ct. 734, 61 L. Ed. 1233, L.R.A. 1918C, 283, Ann. Cas. 1918D, 1169.
General rules of construction are that provisions of the fundamental law should not be given a narrow or technical construction, defeating or unduly limiting the express and implied purpose for which it was intended by the constitutional convention (State v. Birmingham Sou. Ry. Co., 182 Ala. 475,491, 492, 62 So. 77, Ann. Cas. 1915D, 436; Hagan v. Comm. Court, 160 Ala. 544, 49 So. 417, 37 L.R.A. [N. S.] 1027; Joseph v. Randolph, 71 Ala. 499, 46 Am. Rep. 347); and that a new constitutional provision adopted by the people already having well-defined institutions and systems of law —
"must not be construed as intending to abolish the former system, except in so far as it is in manifest repugnance to the new Constitution, and, in determining the real scope and meaning of the new provision, it must be read in the light of the former law and the existing system." State v. Birmingham Sou. Ry. Co., supra; Taylor v. Woods, 52 Ala. 474; Bender v. Meyer, 55 Ala. 576.
The observation of Mr. Chief Justice Brickell of the Constitution was that it was "not the origin or beginning of law in the state"; that "it was made by and for the people among whom the common law prevailed, so far as applicable to their condition, and not superseded or repealed by legislation or constitutional provision, — a people having a well-defined, and well-understood system of law, written and unwritten, statute and constitutional"; that it was not *Page 408 intended to abolish or destroy this system, and set up a new and different system on its ruins; that this system continued, except so far as it is repugnant to the Constitution, subject to the limitations and restrictions imposed by law; that —
"In the light of the former law and existing system, new constitutional provisions are to be read and interpreted, if their real meaning is ascertained, and the intent of the lawgiver carried into effect." Taylor v. Woods, supra, 52 Ala. 477; Ex parte Roundtree, 31 Ala. 42, 44; State ex rel. Winter v. Sayre, 118 Ala. 1, 28, 24 So. 89; State ex rel. Robertson v. McGough, 118 Ala. 159, 166, 24 So. 395; Cooley, Const. Lim. 60.
"New provisions, having their origin in larger experience, introduced into an amended or revised constitution, are to be construed and allowed such operation as will secure the purposes for which they were introduced; and these purposes are to be ascertained from a just consideration of the causes in which they originate." Mayor of Mobile v. Stonewall Ins. Co.,53 Ala. 570, 577; State v. Birmingham Sou. Ry. Co., supra.
That is to say, to regard the nature and objects of its provisions, the end to be accomplished, giving its words their just and legitimate meaning, and to regard "not so much the form or manner of expression" as the foregoing considerations. Carroll v. State, 58 Ala. 396, 401; State v. Birmingham Sou. Ry. Co., supra, 182 Ala. 491, 62 So. 77, Ann. Cas. 1915D, 436.
In Ex parte Selma Gulf Rd. Co., 45 Ala. 696, 728, 6 Am.Rep. 722, it is declared that the General Assembly has the same right to construe the Constitution of the state that the courts have, and where the question is one in which a liberal construction may be made, the legislative construction will not be condemned unless it clearly appears that it is wrong. Ward v. McDonald, 201 Ala. 237, 243, 77 So. 827. This is the foundation for the rule of contemporaneous construction announced by the Supreme Court of the United States. In Cohen v. Virginia, 6 Wheat. 264, 5 L. Ed. 257, Mr. Chief Justice Marshall said:
"Great weight has always been attached, and very rightly attached, to contemporaneous exposition."
In Bank of the U.S. v. Halstead, 10 Wheat. 51, 62 (6 L. Ed. 264), Mr. Justice Thompson stated that —
"If any doubt existed, whether the act of 1792 vests such power in the courts [to mould their process as to meet whatever changes might take place], or with respect to its constitutionality, the practical construction heretofore given to it, ought to have great weight in determining both questions." Ogden v. Saunders, 12 Wheat. 214, 290, 6 L. Ed. 606.
The rule of contemporaneous construction is announced by our court in State ex rel. Clarke v. Carter, 174 Ala. 266, 279,56 So. 974, 978, the excerpt from Cooley's Const. Lim. 67, being approved to the effect that —
"Where a particular construction has been generally accepted as correct, and especially when this has occurred contemporaneously with the adoption of the Constitution, or under a Constitution immediately preceding, and by those who had an opportunity to understand the intention of the Constitution, or a provision thereof in question it is not to be denied that a strong presumption exists that the construction rightly interprets the intention."
This court recently said, through Mr. Justice Somerville:
"As we have already stated, the present structure of the state board of health has existed, under public statutes, since 1875, a period of nearly half a century. So far as we are advised, its legality has never been questioned, and two constitutional conventions nave met and adopted new, and re-adopted old, constitutional provisions, without undertaking to curb this notorious and extended exercise of legislative power. * * * But the uniform legislative interpretation of doubtful constitutional provisions, running through many years, is of weighty consideration with the courts. Ex parte Hardy,68 Ala. 303; Moog v. Randolph, 77 Ala. 597, 606; Farrior v. N.E. M. Security Co., 88 Ala. 275, 279, 7 So. 200; Jones v. McDade, 200 Ala. 230, 75 So. 988." Parke et. al. v. Bradley, State Treas., 204 Ala. 455, 459, 86 So. 28, 32.
All of our Constitutions have expressly remitted to the Legislature as an original and inherent power the matter of providing for elections on constitutional amendment. The time and place of holding elections are proper and necessary elements of the inherent power remitted to the Legislature by the Constitution. This is the effect of the announcement by Mr. Chief Justice McClellan in May Thomas Hdwe. Co. v. Birmingham, 123 Ala. 306, 322, 26 So. 537, 542, where he says:
"The extent of the requirements of the Constitution of Alabama touching the method of voting upon a proposed amendment of that instrument is the provision that all elections by thepeople shall be by ballot, and the provision for the opening ofa poll for the vote of the qualified electors on the proposedamendment. These two provisions together amount simply to a requirement that a proposed amendment shall be submitted to the qualified electors of the state for their vote upon it by ballot. The Constitution expressly remits to the GeneralAssembly the matter of regulating and governing election by laws which are required to be uniform throughout the state."
The Constitution of 1901 declares this power to be in the Legislature. In section 190 thereof it is provided that —
"The Legislature shall pass laws not inconsistent with this Constitution to regulate and govern elections, and all such laws shall be uniform *Page 409 throughout the state; and shall provide by law for the manner of holding elections and ascertaining the result of the same," etc.
See, also, Const. § 222.
This was the power embraced in former Constitutions (Const. 1875, art. 8, § 5), and which Chief Justice McClellan applied to elections on constitutional amendments. Section 156 of the Constitution provides for the election of Justices of the Supreme Court, to be chosen by elections to be held at times and places fixed by law for the election of members of the House of Representatives of the Congress of the United States, "until the Legislature shall by law change the time of holding such election." So, also, does the Constitution declare that the Legislature shall have power to provide for the holding of chancery and circuit courts and of courts having the jurisdiction of such courts, and when the chancellors or judges fail to attend the regular terms of such courts (Const. § 161); yet the power to fix a time for the holding of these courts has been delegated to the Governor or the Chief Justice of this court. This provision of the Constitution is as mandatory upon the Legislature to fix the times of holding courts as it is to the time of holding elections, and it has not been contended successfully that the Legislature has not delegated that power and function to administrative officers.
Thus we are brought to the question: Are the terms of section 284 of the Constitution, providing for the special election "upon any other day appointed by the Legislature" more imperative, or the power there dealt with less delegable, than the other commands of the Constitution, namely, that the Legislature shall fix the time and place of holding the courts, fix the times and places of holding all other elections, or shall fix rates and charges of public highways and common carriers? McNeil v. Sparkman, supra. In Railroad Commission v. A. N. Ry. Co., 182 Ala. 357, 362, 62 So. 749, 750, Mr. Chief Justice Anderson said of the provisions of the Constitution providing the power and authority of regulating railroad freight and passenger tariffs, etc., declared to be "hereby conferred upon the Legislature, whose duty it shall be to pass laws," etc. (Const. § 243):
"Our own court is in accord with the holding that the Legislature performs its function in creating the laws and can delegate the execution of same to officials legally selected for said purpose, and that the giving of said officials some latitude in the execution of same does not amount to the delegation of the authority to legislate." Kimbrell v. L. N. R. R. Co., 191 Ala. 392, 67 So. 586; Ex parte City of Birmingham, supra.
For long years the Legislature of Alabama has repeatedly delegated to the Governor, sheriffs, county commissioners and other governmental agencies the power to fix and name the exact date on which all elections, general and special, should be held. Even when the Constitution has named a date on which general elections should be held, in every instance (except in the Constitution of 1868 — Code 1907, p. 129, § 3, art. 4), it has expressly authorized the Legislature to name these dates and to fix other dates. See all previous Constitutions, same article. As to general elections, the general rule has been that the law named the date; but, as to special elections, the general rule has been that the Governor or other officers or governmental agencies should fix the date. Fixing the time and places for holding elections has always been considered an administrative function, and one which the Legislature could delegate, and the Legislature has so delegated as to special elections during the entire history of the state. See Code, 1907, §§ 440, 441, and corresponding sections of previous Codes there indicated. If the Legislature can delegate the power to the Governor or other officers to fix the date of special elections, it can delegate the power to fix the date of general elections, for there is no difference in kind as to the power to provide for general or for special elections. The Legislature possesses the inherent power as to both. The Legislature has always delegated the power to fix the places at which all elections should be held. There is no difference in the power of the Legislature as to fixing the places of elections and the power of fixing the time of elections. The power of the Legislature in this respect has never been questioned. Therefore the constitutional convention that framed the Constitution of 1901 was cognizant of the law and long-existing precedent in providing for all elections in this state. Hence, when it was provided in the Constitution (1901) that the Legislature should call or order an election by the qualified electors of the state, at which proposed amendments to the Constitution should be voted upon by the people, the convention contemplated that all special elections directed in the Constitution should be provided for by the Legislature in the same manner as the Legislature had always theretofore provided, under all previous Constitutions and for three-quarters of a century, subject to such limitations only as to time or manner which were prescribed in the Constitution.
The Constitution of 1901 provides that the election on proposed amendments to the Constitution shall be held, at the discretion of the Legislature, either at the next general election or at a special election to be held not less than three months after the final adjournment of the session of the Legislature at which the amendments were proposed, and that the time of holding the special election *Page 410 shall be appointed by the Legislature. By the instant resolution or act the Legislature did appoint an exact date for the holding of the election on the proposed amendment, within the time specified in the Constitution — not less than three months after its final adjournment and before the next succeeding general election. It is true that the act or resolution itself did not name the exact date, but it required the Governor to name the day, within the time specified both by the Constitution and the statute; that is to say, it delegated to the Governor the administrative power to fix the exact date of the special election in consonance with authority of law obtaining in this state for nearly a century. Payne on Elections, § 301. And it became the Governor's duty, as a governmental agency, to act in that behalf within the time indicated by the Legislature — that intervening beyond three months from the adjournment of the Legislature and the general election next succeeding the session of the Legislature proposing the amendment. In this connection, we observe, it could not be said that the makers of the Constitution were distrustful of the Governor of the state in the performance of the duties committed to him in so far as an election on proposed amendments to the Constitution is concerned, for the Constitution itself expressly commits to the Governor responsible administrative duties in this behalf. Const. § 120. Such constitutional power is self-executing and mandatory. If the Governor could not be compelled to name the date on which the election should be held, as prescribed by the act and required of him as a governmental agency, he could not be compelled to issue his proclamation and give notice required by the Constitution, or could not be compelled to make proclamation of result of the election as therein provided. In the instant act or joint resolution the Legislature did exactly what all other Legislatures had always done when required to appoint or fix exact dates of special elections — made the date or time of holding the election of certain ascertainment to all of the people of the state, that those exercising the franchise might appear at the time and place fixed by the administrative, governmental agency, to express a choice at the polls on the proposed amendment.
The reason for the practice of the Legislature delegating to some other officer or agent of the state the power to fix the exact dates of special elections is well founded. The Legislature can act only when it is in session. It is impracticable, if not well-nigh impossible, during the session of the Legislature, for it to know the most appropriate time for holding a special election. This is true when the Constitution provides (as it does) that such election must be held on a day not less than three months after the final adjournment of the Legislature, and the Legislature cannot know, in advance of the conduct of the public business or necessities, when it will finally adjourn. It might be necessary for the general welfare that it recess from time to time, or for any reasonable length of time, as is usually the course of legislative deliberations. If the act or resolution proposing the constitutional amendment should be passed at the beginning of the session of the Legislature, and the exact date of holding of the election be fixed therein, the Legislature might not be able to finally adjourn within three months before the date so fixed. It is therefore proper, and sometimes necessary, for the Legislature to delegate this administrative authority to fix the date of the special election to some officer or agency of government, who, after the Legislature has finally adjourned and within constitutional limitations, can fix the date of the special election. True, it has been said by the court that acquiescence will not prevent a court from declaring void a statute which clearly contravenes a Constitution; but uniform interpretation by the Legislature of doubtful provisions of Constitutions, which has continued for three-quarters of a century, is of weighty consideration in all courts. Where a Legislature has delegated certain powers for many years (as that of calling special elections to the Governor), and that delegation has never been disputed or denied, and a new Constitution is adopted (in the light of such practices and statutes), which Constitution does not expressly prohibit such delegation of power, it is a very cogent reason to believe that the power is and was intended to be delegable.
To state the question concretely: When the Constitution of 1901 was adopted, containing the new provision for a special election (section 284), it had long been the law that special elections were to be held in such "cases as are or may be provided for by law" (Code 1907, § 439; Code 1896, § 1598 [359] [249]), and it was provided by law that "all special elections shall be held on such day as the Governor may direct" (Code, § 440; Code 1896, § 1599 [360] [250]), and that "all special elections provided for by this article [article 19, Code 1907; article 6, Code 1896] are to be ordered by the Governor, who * * * must specify * * * the day on which, such election is to be held; the cause and object of the same," etc. Code 1907, § 441; Code 1896, § 1600 (361) (266) (233). When section 284 of the Constitution was adopted, it provided by law for a special election which had not theretofore existed (article 17, § 1, Const. 1875), and such new provision of the Constitution became a "case" provided for by law, to which sections 1598-1600 of the Code of 1896 (Code 1907, §§ 439-441) were applicable. Such was the rule of uniform interpretation touching the administrative power of the Governor as it was delegated to *Page 411 him by the Legislature in the instant case. This new provision in section 284 of the Constitution, providing for a special election, an ancient, well-defined, administrative function or power delegated to the Governor, must not be construed as intending to abolish the former system, as so governed by statute; the real scope and meaning of the new provision providing for special election must be ascertained by reading it "in the light of the former law and the existing system," giving the Governor the power to name the date of the special election, which the Governor did with authority of law in the instant case.
We do not mean to say that it is necessary to resort to the rule of contemporaneous construction of constitutional provisions, to uphold or support the conclusion that the Legislature may delegate the power to fix the time and places at which elections shall be held. This, for the reason that the power to provide for elections is an original and inherent power in the Legislature; and the present Constitution has not only not taken away this inherent power, but recognized it in declaring that the "two houses shall have all power necessary for the legislation of a free state." Const. § 53.
The inherent power of the Legislature was dealt with in Miller v. Marx, 55 Ala. 322, 331, 332, having for construction the homestead provision of the Constitution of 1875 (article 10, § 2), which provided that "every homestead, not exceeding eighty acres, * * * shall be exempted," etc. To effectuate the will of the Constitution-makers in protection or security of a personal right of the citizen, Judge Stone, writing for the court, held that the power to award or allot homestead exemptions was an inherent legislative power, except as the power was limited by the Constitution, and that the constitutional provision in question was self-acting and not in form a direction to the Legislature, and that it exempted homesteads — a personal right of the citizen — to the amount of 80 acres, and therefore limited the minimum of the exemption, but that it did not impose any restrictions on the power of the Legislature to increase the amount to which the resident might be entitled; and this, although the words "not exceeding eighty acres," when read by themselves, could manifestly have no other meaning. See, also, Kenneweg v. Allegany County, 102 Md. 119, 123, 62 A. 249; Winston v. Moore, 244 Pa. 447, 91 A. 520, L.R.A. 1915A, 1190, Ann. Cas. 1915C, 498.
That a legislative act or resolution cannot be declared void unless an express prohibition can be found in the Constitution, and that implied prohibition will not suffice, was settled in Southern Railway Co. v. St. Clair, 124 Ala. 491, 494, 27 So. 23. If there had been doubt of the right to strike down a statute by implied prohibition, it was resolved by this authority. The court said:
"* * * In the absence of express, affirmative provision, from the mere silence of the Constitution in reference to any subject, prohibition of legislative power cannot be implied. When the Constitution is silent, the power to legislate exists, or there must be departure from the established principle 'that Constitutions are not in the nature of enabling acts, but are limitations upon the otherwise boundless powers of the Legislature, or, in other words, that the General Assembly is not to look to the organic law to ascertain what is permitted it to do, but only to find what inhibitions are thereby put on its action.' Mayor v. Klein, 89 Ala. 465; Sharpless v. Mayor, 21 Pa. St. 147 (s. c. 59 Am. Dec. 759); Commonwealth v. Maxwell, 27 Pa. St. 446. In Prouty v. Stover, 11 Kan. 256, defining the nature and extent of implications, which are indulged to avoid legislation, Judge Brewer said: 'To sustain an implied inhibition, there must be some express, affirmative provision. The mere silence of the Constitution on any subject cannot be turned into a prohibition.' * * * 'To sustain an implied inhibition, the express provision must apply to the exact subject-matter, and the inhibition will not be extended further than is necessary to give full force to that provision.' * * * 'To declare a law void as conflicting with an express provision of the Constitution, the conflict must be clear. So say all the authorities.' "
If there is no express provision in the Constitution against the delegation of the administrative duty to the Governor to fix the day of the election, within the constitutional limits, that negation does not exist; if there is no express provision in the Constitution that denies the right of the Legislature to adopt the amendment suggested by the Governor, it does not exist; if there is no express provision in the Constitution against the incorporation in the act or resolution of the matter embraced in its section 7 requiring reports of the state highway engineer to the state treasurer as therein required, and pertaining to the duties of the state treasurer, etc., then it does not exist. It would appear that the St. Clair Case answers appellant's attack on the act or resolution on grounds of failure of adoption pursuant to the Constitution.
Appellees rely on Collier, Governor v. Frierson, supra. The constitutional provision there construed was contained in the Constitution of 1819. The amendment to that Constitution, submitted to the vote of the people by the General Assembly of 1844-45 (Acts 1844-45, P. 208), proposing biennial (instead of annual) elections of the state treasurer and comptroller, held not ratified because omitted from the ratifying resolutions of the next succeeding Legislature, and did not even show that that particular amendment was voted upon, eight amendments being proposed at the same election. Mr. Justice Goldthwaite stated that there were two ways by which that Constitution could be amended, *Page 412 either by the people, who originally framed it, or in the mode prescribed by the instrument itself, and, if the last mode is pursued, the amendments must be proposed by two-thirds of each house of the General Assembly, must be published in print as required, and it must appear (from the returns made to the secretary of state) that a majority of all the citizens of this state voting for representatives have voted in favor of the proposed amendments, and two-thirds of each house of the next General Assembly shall, after such election and before another, ratify the same amendments by yeas and nays; the proposed amendments shall, at each of said sessions, have been read three times, on three several days, in each house. Under such provision for double ratification (1) by the people and (2) by the next succeeding session of the Legislature, the Justice says, of the failure of the record to show such subsequent ratification by the second Legislature, that every requisition which is demanded by the instrument itself must be observed, and the omission of any one is fatal to the amendment. This amendment to the Constitution made the subject of consideration in Collier v. Frierson, supra, was considered by Mr. Justice Brewer in the Constitutional Prohibitory Amendment Cases,24 Kan. 700, 709, 710, as follows:
"It is well said by counsel that no change can be made in the fundamental law, except in the manner prescribed by that law. In the case of Collier v. Frierson, 24 Ala. 100, the court says: 'We entertain no doubt that, to change the Constitution in any other mode than by a convention, every requisition which is demanded by the instrument itself must be observed, and the omission of any one is fatal to the amendment.' That case illustrates and enforces this proposition. The Constitution of Alabama required, in order to work an amendment, that the proposition be approved by two-thirds of one Legislature, a popular vote, and then by two-thirds of the next Legislature. This last approval was wanting, and the court held that the Constitution had not been amended. In other words, proceedings under a Constitution to change that Constitution must be in accord with the manner prescribed by that Constitution. But this only brings us to the real question in this case: Is a proposition to amend the Constitution in the nature of a criminal proceeding, in which the opponents of change stand as defendants in a criminal action, entitled to avail themselves of any technical error, or mere verbal mistake; or is it rather a civil proceeding, in which those omissions and errors which work no wrong to substantial rights are to be disregarded? Unhesitatingly, we affirm the latter. The central idea of Kansas law, as of Kansas history, is that substance of right is grander and more potent than methods and forms. The two important, vital elements in any constitutional amendment are the assent of two-thirds of the Legislature and a majority of the popular vote. Beyond these, other provisions are mere machinery and forms."
The Legislature proposed the amendment, the Governor, as its administrative agent, gave notice as required by the Constitution and fixed the date of the election as provided by law, and at the election, held as provided by law, the amendment was ratified by a large majority of those voting, being therefor 83,607, and against 12,026. By this was accomplished the constitutional essentials — the assent of both Houses of the Legislature in proposing the amendment, and its adoption by a majority of the popular vote after due notice. Such are the cogent reasons which will prevent defeat of the will of the Legislature and the will of the people, on the ground "that the election on said amendment was not ordered and the day of the election fixed by the Legislature as required by the Constitution."
Resolutions or acts proposing amendments to the Constitution, passed by the constitutional majorities of both houses in manner provided by the Constitution, are valid as against the Governor's veto. The provision in section 287 of the Constitution, that no act or resolution proposing an amendment to the Constitution shall be submitted for the approval of the Governor, etc., is merely a declaration that the Governor's approval shall not be necessary. Dodd's Revision and Amendment of State Constitutions, pp. 148, 152. The submission to the Governor of such acts or resolutions was not required before the Constitution of 1901; the provision that such act or resolution shall be valid without the Governor's approval is but declaratory of what the several Constitutions had theretofore intended on this subject. If an act or resolution proposing an amendment is valid without the approval of the Governor, it is not rendered invalid by its submission to him and his approval three days after the adjournment of the Legislature.
Where the resolution or act is submitted to the Governor for approval, and an amendment is proposed by him which is adopted by a three-fifths vote of the members elected to each of the respective houses, etc., and as amended is approved by the Governor, the act or resolution is not rendered void because of the adoption of such suggestion or amendment; that is, because, after the passage of the resolution, suggestion is made that the act or resolution be amended by the inclusion of the phrase "subject to the approval of the Governor" after the words "and all moneys derived from the sale of said bonds shall be expended as the highway department may direct," which was adopted by a three-fifths vote. The Constitution did not require its rereading in both houses of the Legislature on three several days and its readoption upon the third reading. Section 53 of the Constitution provides that —
"Each house shall have power to determine the rules of its proceedings * * * and the *Page 413 two houses shall have all the powers necessary for the Legislature of a free state."
Thus was the unrestricted right of the Legislature secured, untrammeled by the rules or procedure in other deliberative bodies, otherwise than imposed upon it by its own will.
Having reserved to the Legislature this inherent power, it had the right of amendment or reconsideration as an attribute of such deliberative body, not forbidden to the Legislature by the Constitution, provided the amendment was adopted by the requisite vote of the two houses as required by the Constitution. Crawford, Secretary of State, v. Gilchrist, Governor, 64 Fla. 41, 59 So. 963, Ann. Cas. 1914B, 916. This power is further shown by the provisions of section 286 of the Constitution that —
"No act or resolution of the Legislature, calling a convention for the purpose of altering or amending the Constitution of this state, shall be repealed except upon the vote of a majority of all the members elected to each house at the same session at which such act or resolution was passed."
This Constitution recognizes that the right was inherent in the Legislature to act according to its legislative will as to amending the act or joint resolution (within the limitations prescribed by the Constitution) at the session at which the act or resolution is proposed or passed. The record shows that the amendment in question was incorporated as a part of the act or resolution by the affirmative vote of three-fifths of all the members of both houses, etc., and that the same was signed by the presiding officers of said houses, as required by the rules governing such legislative bodies and by the Constitution itself. As we have stated, the Constitution in section 53 provides that each house shall have power to determine the rules of its proceedings, and that it had the power to amend the act or resolution as it did was settled in Jones v. McDade,200 Ala. 230, 234, 75 So. 988, 992, where it is said:
"The requirement of three readings in each house of proposed amendments to the Constitution (section 284) was not intended to exact these six readings of a proposed amendment in hæc verba in both houses. To so affirm would exclude the right of the houses to amend, and thereby to perfect proposals for the submission to the electorate of amendments to the Constitution. * * * Any other interpretation would result in the necessity of commencing anew a whole series of readings every time an amendment was desired by either of the houses."
Grounds of the demurrer are that the amendment was not advertised as required by law. Const. § 284; Gen. Acts 1915, p. 602. In Jones v. McDade, supra, 200 Ala. 237, 75 So. 995, this court said of a provision of section 284 of the Constitution, that —
"It is strange that in the preparation of this feature of the official ballot the legislative directions given in this instance with respect to what the official ballot should contain (Gen. Acts 1915, p. 213) seems to have been at least incautiously ignored. Of course, if the ballot matter recited in an act was deficient, and that placed on the ballots met the exactions of the Constitution (section 285), and the requisite majority approved the proposal, the amendment of the Constitution would be effected, notwithstanding the deficiency of the act's recital in that particular. * * *"
The Constitution required notice by publication for at least eight successive weeks next preceding the day appointed for such election. As to this requirement, it was self-executing to the extent of eight weeks' publication required of the notice of the election, together with the proposed amendment. The Governor's notice and proclamation having conformed to such provision of the Constitution, the stipulation in section 4 of the act for the publication of said election for at "least seven successive weeks" was without effect, though the requirement by publication in a newspaper, etc., was effective. The resolution or act need not have contained any reference to the length of time during which notice and proclamation should be published in the county newspapers, for the reason that the Constitution had imposed the duty on the Governor of giving the lawful notice in manner prescribed. This was done by the Governor in strict conformity to the Constitution.
The proposed amendment is not void for uncertainty. Typographical and clerical errors occur in the amendment, authorizing levies of taxes on automobiles, etc. The word "on" is used for the word "and" in paragraph B of section 3, after the words "levied and collected," and before the words "all such vehicle privilege license tax." The context shows that the conjunction was intended and supplied, or the context was self-corrective. In paragraph G of section 3 the time when the same became effective is supplied by the context and a change in the punctuation. This is permissible to effectuate the legislative intent apparent from the context and whole instrument; when so considered the meaning is "that this amendment and the foregoing provisions thereof when ratified by the people are self-executing without the aid of further legislation, but the Legislature shall pass such laws as it may deem necessary to secure the full benefit and effect of this amendment to the Constitution. (,) Either (either) at this session of the Legislature or at the earliest possible time after the ratification by the people (.)" That this amendment shall become in full force and effect, notwithstanding sections 93 and 213 of the Constitution concerning conflicting provisions. Hooper v. Birchfield, 115 Ala. 226, 232, 22 So. 68; Harper v. State, 109 Ala. 28, *Page 414 31, 19 So. 857; State ex rel. Leslie v. Bracken, 154 Ala. 151,155, 45 So. 841; State ex rel. Wilkinson et al. v. Lane, 181 Ala. 646, 655, 62 So. 31, and authorities collected in Williams, Judge, v. State ex rel. Schwarz,197 Ala. 40, 48, 55, 73 So. 330, Ann. Cas. 1918D, 869; Clark v. Boyce, 20 Ariz. 544, 185 P. 140; Cooley, Const. Lim. (7th Ed.) p. 91; 2 Lewis' Sutherland Stat. Const. § 380.
We think the trial court properly sustained demurrer to complainant's bill and dismissed the same, and that decree should be affirmed.
SOMERVILLE and GARDNER, JJ., concur in the foregoing dissenting opinion of THOMAS, J.