The views of the minority have been very ably presented in the opinion of Justices SOMERVILLE and THOMAS, in which I fully concur, and while an additional opinion might appear superfluous, I have thought it not inappropriate, in view of the importance of the question presented as a precedent for the future, and the serious consequences following the decision, to state very briefly some few observations of my own which have been made more clear by the exhaustive brief of counsel for appellee upon application for rehearing, and make reference to a point first presented upon this application, and not heretofore treated.
I am persuaded that section 284 of the Constitution contemplates two separate acts, the first a proposal of an amendment, and, second, after the adoption of the proposal, necessary provision for submission thereof to the people, and that the very language discloses it was not contemplated the Legislature should order an election until after the proposal to amend the Constitution had been passed by both houses. Let it be assumed that the Legislature passed the proposed amendment by the requisite majority, and after a compliance with the provisions of section 284, but that such amendment made no reference whatever to the question of election, which would, of course, have been entirely proper. Section 284 contains no provision as to how the Legislature shall subsequently order an election, nor does it prescribe any method for the passage of such act, nor does section 287 make any reference thereto. If, therefore, the same Legislature proposing the amendment in the foregoing illustration, should by a separate bill provide for a special election, the procedure for the passage would not be governed by any provision of section 284 of the Constitution, but by other provisions concerning ordinary laws. This should suffice to demonstrate that as to this feature of the amendment the Legislature was acting only in its legislative, a law-making, capacity.
Counsel draw the distinction — perfectly valid to my mind — that the authority to propose an amendment is vested in the Legislature as an entity other than a lawmaking body, while the authority to order an election and provide for the machinery thereof is vested in the Legislature as a law-making body. If this is a correct premise, then it follows, under the authorities, that the Legislature, acting in its legislative capacity, was authorized to delegate to the Governor the right and power of fixing the day of the election. The recent case of Ex parte City of Birmingham, 199 Ala. 9, 74 So. 51, is sufficient authority upon this point, if, indeed, citation of authority is deemed necessary. I am therefore of the opinion that, even under the strict rule of construction applied by the majority, the amendment is entirely valid.
However, I am not in accord with the rule of construction given application by the majority, for, in my opinion, that part of section 284 dealing with the question of an election should be given a liberal, rather than a strict and literal, construction. It is readily seen that such a rule plays an important part in the result attained. The strict rule of construction applied by the court in the instant case is entirely proper when there is under consideration language of the Constitution dealing with fundamental principles of government, or the life, liberty, or property rights of the citizens, or other matters of substantial character; but to those provisions directed to the law-making body concerning the time or manner of performing certain acts a liberal rule of construction should be applied, and such directions held as merely directory, unless the language used is such as to negative such a construction. This rule was announced in the early judicial history of our country by Chief Justice Gibson in Commonwealth v. Clarke, 7 Watts S. (Pa.) 127, where, in construing constitutional provisions as to appointments and elections, he said that "necessarily, the paramount rule of interpretation demands that such provisions be deemed only directory." Continuing, the learned jurist said:
"A Constitution is not to receive a technical construction, like a common-law instrument or a statute. It is to be interpreted so as to carry out the great principles of the government, not to defeat them; and to that end its commands as to the time or manner of performing an act are to be considered as merely directory, wherever it is not said that the act shall be performed at the time or in the manner prescribed, and no other. The object of the command, in this instance, was no more than to urge the Legislature to put the elective principle in active operation at the earliest day practicable under all the circumstances, and it has been accomplished."
This court, as I read the opinion, practically adopted this rule of construction as applicable to such matters found in the Constitution in the case of Realty Investment Co. v. City of Mobile, 181 Ala. 184, 61 So. 248, where, quoting from Dorman v. State, 34 Ala. 216, the court says:
"A constitution is not to receive a technical construction, like a common-law instrument, or statute."
The majority quote from Collier v. Frierson, 24 Ala. 100, in support of the position *Page 417 taken, but the language there should be considered in connection with the case then under review. The Constitution then required amendments to be proposed by one Legislature, and accepted by a majority vote of the people and then ratified by the succeeding Legislature. While the amendment there under consideration was proposed by one Legislature, it was not made to appear that it had been ratified by the people, nor submitted to the succeeding Legislature for ratification, and it was in the light of this situation that Justice Goldthwaite used the language quoted in the majority opinion. The language used was entirely applicable to the situation thus presented, and it would appear that the claim that the amendment there considered had become a part of the Constitution was without color of right. The holding in that case was entirely proper, and, indeed, could not have been otherwise, and I do not consider that the language used at all conflicts with the rule of interpretation laid down by Chief Justice Gibson concerning those matters purely of an administrative character, and recognized by this court in the Realty Investment Co. Case, supra.
This court has many times declared that it is a solemn thing to strike down a legislative act as contravening the fundamental law, and that, before this is done, the judicial mind must be convinced to that end beyond all reasonable doubt. But to strike down an amendment to the Constitution, submitted to and ratified by the people, is still more solemn, and, if possible, should call for a higher degree of caution and thorough conviction of the judicial mind.
In section 2 of the Constitution the inherent right of the people to change their form of government (and an amendment to the Constitution is such a change to that extent) was declared in the following language:
"That all political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit; and that, therefore, they have at all times an inalienable and indefeasible right to change their form of government in such manner as they may deem expedient."
It is conceded, and of course correctly so, that whether or not an amendment to the Constitution has been constitutionally proposed and adopted as a part of that instrument is a judicial question, and therefore properly for the courts to determine; but the argument is advanced that, notwithstanding this there does come a time when the courts may decline to consider whether or not a given amendment to the Constitution was in its inception strictly and literally proposed or adopted, as provided in the Constitution, and that such a time arrives when the state as a government, and the people as a body politic, have functioned, accepted and operated under such amendment as a part of the Constitution. I am persuaded that this is a sound rule.
We have had several amendments to the present Constitution, which have been recognized as a part of the organic law by all departments of the government, accepted as such by the people, and the state as a government has functioned and operated under such amendments as a part of the Constitution for such a time that surely this court would not now attempt a consideration of the question as to whether or not they had been proposed and adopted in the very literal and strict manner provided by the Constitution. This question was given consideration in the case of Secombe v. Kittelson, 29 Minn. 555, 12 N.W. 519, in a suit to enjoin the treasurer from paying out the funds of the state upon bonds authorized to be issued by the constitutional amendment, upon the theory that the proposed amendment was not properly proposed or submitted to the people in accordance with the provisions of the Constitution. Speaking to this question the court said:
"This constitutional amendment, proposed and submitted by the Legislature, was adopted by the people as a part of the fundamental law of the state, and subsequently recognized and acted upon as such by every department of the state government. As ultimate sovereignty is in the people, from whom all legitimate civil authority springs, and inasmuch as in the inception of all political organizations it is this original and supreme will of the people which organizes civil government, a court has no right to inquire too technically into any mere irregularities in the manner of proposing and submitting to the people that which they have solemnly adopted, and subsequently recognized and acted upon, as part of the fundamental law of the state. We doubt whether a precedent can be found in the books for the right of a court to declare void a Constitution, or amendment to a Constitution, upon any such ground. But, however this may be, there are, in our opinion, two conclusive reasons why the right to inquire into any irregularities in the mode and means by which this constitutional amendment was proposed and adopted must be now forever closed: First. Such irregularities, if any, must be regarded as healed by the subsequent act of Congress admitting Minnesota into the Union. Cooley on Const. Lim. 27. Second. They must be deemed cured by the recognition and ratification of this amendment, as a part of the Constitution, by the state after its admission into the Union. This was done by the issue of the state railroad bonds, and accepting security for the protection of the state under its provisions."
The principle was also recognized in Miller v. Johnson,92 Ky. 589, 18 S.W. 522, 15 L.R.A. 524; Taylor's Case, 101 Va. 829, 44 S.E. 754; Brittle v. People, 2 Neb. 198. I am persuaded that this principle is applicable to this amendment.
The amendment was proposed by a unanimous vote of both houses of the Legislature, *Page 418 where the Constitution only requires the three-fifths vote of the members elected to each house. It was ratified and adopted by more than seven-eighths of the qualified electors who voted at election — while the Constitution only requires a majority vote for its adoption. It was proclaimed by the Governor to have been adopted as the Constitution required him to do. The Constitution expressly provides that —
"If it shall thereupon appear that a majority of the qualified electors who voted at such election upon the proposed amendments voted in favor of the same, such amendment shall be valid to all intents and purposes as parts of the Constitution." Section 284.
The people not only voted for it, but accepted it and acted upon it. The state, acting through its Legislature, accepted it — declared it had been adopted as a part of the Constitution by a solemn resolution and act which proposed an amendment to it, which was subsequently submitted to the people. The state again accepted it by creating a highway commission, which it authorized to issue and sell bonds in accordance with the amendment. This commission has issued and sold some of the bonds, so the bill avers and the demurrer confesses. It authorizes the levy and collection for the exclusive benefit of the road fund and to pay the bonds, the interest thereon, and certain license and privilege taxes. These taxes have been levied and collected, and the proceeds devoted to the purposes specified.
It is common knowledge that the amendment was made in order for the state to accept and to be able to comply with, and get the full benefit of, the offer made by Congress to the several states to aid them in constructing public highways in the several states. This act of Congress is known as the State Aid Act for the construction of post roads. This act has been accepted by the state, and it has acted under it, as appears from the act of the Legislature creating the highway department and the commission. Section 20 of this act (Gen. Acts 1919, p. 897) is an express adoption and ratification of the act of Congress, and by which it pledges the faith of the state to accept and carry out the proposal made by Congress to the states in this State Aid Act.
The state has thus accepted the offer of the federal government, and has in effect proclaimed that it has so amended its Constitution as to authorize it to issue and sell bonds and to levy privilege or license taxes for the exclusive use of the state for highway purposes, which it could not theretofore do. The state has not only proclaimed the amendment to be adopted, but the people and the state have accepted and functioned under it by issuing and selling bonds, by levying and collecting taxes for the exclusive purpose of the state highways, and has so expended the funds. It has therefore been clearly accepted and ratified, and the state government functioned and operated under the assumption that it was a part of the organic law, and I am of the opinion the principle recognized in these authorities applies with force here, and that the time has now come when this court should not —
"inquire too technically into any mere irregularities in the manner of proposing and submitting to the people that which they have solemnly adopted and subsequently recognized and acted upon as part of the fundamental law of the state."
The discussion of this principle, and its recognition, is also important in view of another amendment of the Constitution, known as the soldiers' poll tax amendment, adopted by the people of the state, but which appears to be subject to the same criticism as that which the majority treat as fatal to the amendment here under consideration. If the poll tax amendment is likewise held subject to this infirmity, then the question arises as to whether or not the foregoing principle should be brought into view, and the amendment saved by its application. By this amendment thousands who served in the army and navy during the period of the World War, and who were honorably discharged from such service, and qualified electors, except for the payment of poll tax, were exempted from its payment, and this amendment was proclaimed as a part of the organic law, and the Legislature of this state subsequently ratified and adopted and put it into operation, and the people of the state have accepted and acted upon it as a part of the Constitution, and these men exercise the right of franchise in reliance thereon. This amendment was brought before this court in Cornelius v. Pruet, 85 So. 430;1 but the question as to its constitutionality was not presented, and therefore not considered. However, we cannot shut our eyes to the fact that evidently the decision in that case was accepted and acted upon by those interested, as well as by other departments of the state, as having met with the approval of the court. That amendment, therefore, in my opinion, has been fully accepted and ratified, and the state government has functioned under the assumption that it was part of the organic law, and should be protected by the foregoing principle.
I forego further discussion, and respectfully dissent from the majority view.
SOMERVILLE and THOMAS, JJ., concur.
1 204 Ala. 189. *Page 419