The result of the decision of the court in this case is to strike down what is known as the Soldiers and Sailors Poll Tax Amendment, and the conclusion is rested upon the holding of the majority in Johnson v. Craft, 205 Ala. 386. 87 So. 375, in reference to the Road Bond Amendment. From the holding in the latter case the writer dissented, with expression of his views in a separate opinion — to which he still adheres — and while recognizing the binding force of previous rulings of the court, yet *Page 376 he is unable to agree to an affirmance of the instant case upon that authority for reasons to be briefly stated.
It is conceded, of course, 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. Nevertheless, it is a perfectly sound rule of law, well established by the authorities, that 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 in the manner provided by 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. This principle was given recognition by the Supreme Court of Minnesota in the case of Secombe v. Kittelson,29 Minn. 555, 12 N.W. 519, wherein is found the following language:
"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."
This 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.
Indeed, as I read the majority opinion in Johnson v. Craft, supra, it concedes that there are authorities to this effect, but indicates the language of the court in Collier v. Frierson,24 Ala. 100, as being out of harmony with this principle. The amendment under consideration in the Collier Case was proposed by one Legislature, but it was not made to appear that it had been ratified by the people, nor submitted to the succeeding Legislature as the Constitution then in force required, and that case must be viewed in the light of this situation. The language used was entirely proper as applied to that particular status for the claim that the amendment there considered had become a part of the Constitution was without color of right. But here an entirely different question is presented, one involving not a question of substance but of form and procedure; and in the Prohibitory Amendment Cases (24 Kan. 700) Justice Brewer refers to the case of Collier v. Frierson, and points out this distinction, saying:
"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. They may not be disregarded, because, by them, certainty as to these essentials is secured. But they are not themselves the essentials."
Whether the Legislature, or the Governor as the delegated authority of the Legislature, appointed the day for the election cannot be said to present a question of substance, but only of form or procedure, for it is apparent substantial rights have been in no manner affected. An entirely appropriate day was appointed and the election duly held. As disclosed in the opinion of Justice Brewer, in so fundamental a matter as an amendment by the people of their Constitution, form or procedure should not be stressed to the exclusion of substance, for as he so well states, "substance of right is grander and more potent than methods and forms."
This principle here contended for is supported by authority as well as sound reason and common sense, and if it is ever to be given recognition in this state, it appears to the writer that the instant case calls for its application. This amendment was submitted to a vote of the people and ratified by a large majority. It was proclaimed by the Governor as a part of the Constitution. It is common knowledge that the boards of registrars throughout the state have registered thousands of electors under its provisions. The Legislative Department expressly recognized it in Acts Special Session 1920, p. 2, and while the Judicial Department did not pass upon the constitutional question here involved, yet by the decision of this court in Cornelius v. Pruet, 204 Ala. 189, 85 So. 430, it was given force and effect, and rights established thereunder. It is known by every one that thousands participated in the *Page 377 elections under the belief that they were qualified under the terms of this amendment. The question depends, not so much upon the mere passage of time, as upon the accrual of rights established after 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.
The question here discussed was brought to the attention of the court in Johnson v. Craft, supra, for the first time upon application for rehearing and was considered by the writer in expressing his dissenting views from the holding of the majority, in which dissent reference was made to the amendment now under review, and the effect the decision in that case would have thereon, and, as pertinent here, used the following language:
"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; 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."
The opinion of the majority in the instant case, as I understand it, in practical effect repudiates this doctrine. It is, I think, well supported by the authorities, and I find none to the contrary. The case of Collier v. Frierson, cited by the court, treated no question of mere irregularity, and this principle was not then presented or in any manner considered, and as pointed out above in no wise conflicts with this view.
After a more careful study and consideration of the question, I am still more firmly persuaded of the correctness of the foregoing conclusion, and of the soundness of the principle here insisted upon as well as its direct application to this amendment.
I forego further discussion, and respectfully dissent.
THOMAS, J., concurs.