I concur in the foregoing opinion of Mr. Justice THOMAS, which presents an admirable exposition of the constitutional provisions here in question, and a full review of the principles and authorities upon which the conclusion of the minority is grounded. I wish now to state a few observations of my own, which are suggested by my examination of the opinion filed in support of the majority view, and by my further consideration of the constitutional provisions which my Brethren of the majority have held as inconsistent with the validity of the Road Bond Amendment.
The Justices of the minority are in entire accord with the sentiment — so vigorously stated and so well sustained in the opinion of Mr. Justice McCLELLAN — that the Constitution is the paramount law, to which each department of the government, legislative, executive, and judicial, must yield an unquestioning obedience; and we are profoundly sensible of our solemn obligation, as members of this high court — its appointed interpreter and guardian — to preserve its integrity and to see that its authority and mandates shall never be denied or disregarded.
The question at issue is not whether a recognized mandate of the Constitution can be disregarded — as to which there can be no difference of opinion — but whether there is in fact to be found in section 284 of the Constitution a mandate which has been disregarded or disobeyed. Independent of the Constitution, the Legislature possessed the power to provide for and regulate elections, and section 190 of our present Constitution imposes upon it the duty of enacting laws for that purpose. Section 284 requires the Legislature to order an election upon proposed amendments "[which is] to be held either at the general election next succeeding the session of the Legislature at which the amendments are proposed or upon another day appointedby the Legislature."
It seems quite clear to me that in making this provision for holding an election, which is indeed mandatory, the Constitution makers assumed as a matter of course that the Legislature would appoint a day, and that the italicized phrase is no more than a reference to the anticipated exercise of legislative authority in that behalf. I cannot discover in such allusion to anticipated legislative action any purpose to impose upon the Legislature a direct mandatory duty to provide for the time of the election, and to exclude the Legislature from acting in the usual way in accordance with its immemorial practice by general provision or by a delegation of this unimportant ministerial duty to another responsible governmental agency. I cannot agree with the statement in the majority opinion that the mere appointment of a day for such an election was in fact, or was so regarded by the Constitution makers as, "a purpose of the gravest constitutional character"; nor can I discover any intention on the part of the Constitution makers to descend to a statement of administrative detail in such a matter, and thereby to change a mode of procedure which was familiar to the Legislature and to them, and the necessity or utility of which is by no means apparent.
I may concede that the interpretation which the majority have placed upon this provision is a permissible interpretation, but that such a meaning is necessarily to be deduced from such language, or that such is its most rational meaning, I cannot concede. In such a case I think it is the duty of this court to adopt that interpretation of this constitutional provision which is in consonance with the legislative practice theretofore existing, and which will uphold the validity of a constitutional amendment depending upon that action.
The learned writer of the majority opinion himself has furnished an excellent example of common sense construction in denial of the plain letter of the Constitution in the case of Jones v. McDade, 200 Ala. 230, 75 So. 988, in dealing with the requirement of this same section of the Constitution that "proposed amendments shall be read in the house in which they originate on three several days." It was held, upon good and sufficient reason, I think, that a proposed constitutional amendment could be amended at any stage during its passage, and that the completed proposal was not subject to the requirements stated, but could be adopted as amended without a repetition of former readings. The result, as I read the opinion, was grounded solely upon the argumentum ab inconvenienti, and the unreasonableness of such a procedure; and yet the Constitution is explicit in its requirement that the proposed amendment should be read three times on three several days in each house, *Page 415 and if that provision is to be strictly and literally construed, according to its plain language, there could be no escape from the conclusion that every complete amendment, as it is submitted for adoption by the people, must have been thus read before both houses in its entirety. In the case of Realty Investment Co. v. City of Mobile, 181 Ala. 184, 61 So. 248, it was held by this court that in matters of legislative detail it was sufficient if the constitutional requirement was met "in substance and legal effect" — thus recognizing a distinction in the principles of construction which are to govern in such cases. In that case a literal construction of the requirements of the Constitution as to the form of ballots would have defeated a bond election, and it was observed by Mr. Justice Sayre, speaking for the court, that —
"Constitutions usually deal with larger topics and are couched in broader phrase than legislative acts; hence their * * * interpretation is not always reached by the application of similar methods."
So, in the case of State v. Birmingham Southern Ry. Co.,182 Ala. 475, 62 So. 77, Ann. Cas. 1915D, 436, a distinction was noted between the construction of constitutional provisions dealing with elementary rights of citizens and those which merely prescribe some rule of governmental policy, or relate merely to the conduct and administration of public affairs. And it was there observed that —
"The safe rule of constitutional construction is to regard not so much the form or manner of expression as the nature and objects of its provisions, and the end to be accomplished, giving its words their just and legitimate meaning," and, further, "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."
Under section 243 of the Constitution a mandate is laid upon the Legislature "to pass laws from time to time regulating freight and passenger tariffs." And notwithstanding that this duty is imposed directly upon the Legislature, this court held, in Railroad Commission v. Alabama Northern R. R., 182 Ala. 357,62 So. 749, that this provision meant no more than to require the Legislature to make provision for that purpose, and that the determination and prescription of tariffs for freight and passenger service could be lawfully delegated to a commission created by the Legislature for that purpose; and it must be noted that that commission was not merely empowered to execute the laws, but was invested with a vast discretion in the fixing of tariffs and rates. A literal interpretation of that provision would undoubtedly have confined the Legislature to its own immediate action, and forbidden a delegation of a large and important discretion to administrative agents. But it was observed by Mr. Chief Justice Anderson, speaking for the court, that the object of the constitutional provision was to give proper protection to the traveling public, and that when it passed laws for this purpose its duty was fully done.
The foregoing considerations and analogies will sufficiently explain the basis for the views entertained by the minority justices in this case. It is unnecessary to enter upon a discussion of those authorities which support the view that unimportant constitutional prescription may be regarded as directory rather than mandatory, and their violation disregarded. We wish, however, to note with respect to the case of Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 P. 3, which is cited in the majority opinion as an authority repudiating the principles announced by Judge Brewer in the Kansas case, is not in fact an authority to that end, since, as explained in the later case of Oakland Paving Co. v. Tompkins, 72 Cal. 5,12 P. 801, 1 Am. St. Rep. 17, the views quoted represented the individual opinion of Justice Temple, in which the court did not concur. In the latter case it was said:
"All admit that the constitutional requirement must be strictly performed. But it does not follow from this that the language of the instrument must be understood literally. The same rules of construction must be applied, to ascertain what its requirements are, as though they were not mandatory and prohibitory. And we think, when an act commanded or authorized may be done in different ways, either of which would be a strict compliance with the terms of the instrument understood in some common and popular sense, either mode may be pursued, unless some reason is discoverable for holding one of such modes only will answer."
To summarize: We are of the opinion that the language of section 284 of the Constitution may be reasonably construed as a mere reference to expected and appropriate legislative action, appointing a time for holding the election, either by direct action or by a delegation of the duty to a trusted administrative agent according to previous usage, and that it is not only unnecessary, but it is in fact unreasonable to impute to the makers of the Constitution a design to control and limit the action of the Legislature with respect to a comparatively unimportant matter of administrative detail in derogation of a usage which was of long standing, and as to which no necessity for change was apparent.
Upon the soundest principles of interpretation and construction we think that the amendment in question can be sustained. The majority have based their conclusion *Page 416 solely upon the ground herein discussed, and we therefore deem it unnecessary to enter upon a discussion of other objections which do not seem to be material to that conclusion.
GARDNER and THOMAS, JJ., concur in the foregoing views.