A few things would seem to be fundamental in our institutions. Among them the following:
1st. "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." Section 2, Declaration of Rights, Constitution of Alabama 1901.
2d. In the absence of constitutional restrictions, the plenary legislative powers vested by the Constitution in the Legislature included the power to fix the salaries and compensation of public officers, and to increase or decrease same at any time as the Legislature should determine. Even as to a constitutional office, this court, through Chief Justice Brickell, declared: "The office, unlike the offices known to the common law, which, lying in grant, were deemed incorporeal hereditaments, has in it no element of property. It is not alienable or inheritable. It is a personal public trust, created for the benefit of the State, and not for the benefit of the individual who may happen to be its incumbent. The measure of his compensation is properly submitted to the legislative power, to be determined in view of the condition of the State, and the necessity for and importance of the discharge of the duties of the office. These will vary from time to time, and will demand as they vary a diminution or enlargement of the compensation. Whoever accepts the office, if he accepts it for the compensation only, has full knowledge of the power of the legislature, and no cause of complaint if they exercise it. He accepted voluntarily, and can voluntarily resign if the compensation is not adequate." Ex parte Lambert,52 Ala. 79, 82.
Section 281 and kindred sections protecting salaries from legislative interference during the term are limitations on the powers of the Legislature. The same Constitution expressly reserved the inalienable right to amend the Constitution. The power to amend included sections 68, 150, and 281 the same as any other sections. This includes the power to determine what the amendment should be; the power to strike out such sections altogether, or strike them out for a limited time to meet special and temporary conditions. To my mind these propositions are so manifest that to state them is all the argument needed.
Article 24 of our Constitution (Amend. No. 26A), the Sparks Amendment, expressly ordains: "that from and after the firstday of the month next succeeding the date of the ratificationand adoption of this amendment no salary, compensation, fees orcommissions paid to any officer under the State or any Countyor Municipality thereof, shall exceed the sum of Six ThousandDollars per annum. Said limitation of $6000.00 to beinoperative after October 1, 1935." (Italics supplied.) See General and Local Acts, Extra Session 1933, pp. 46, 47, 48.
The entire thought and purpose of this amendment was retrenchment for the time specifically stated. It fixed the date when it should become operative and the date it should end.
By express terms this provision as to time applies to county as well as to state officers; applies to county officers compensated in whole or in part from fees, as well as "commissions," either out of public funds or fees paid by individuals for official services.
We must keep in mind this amendment was submitted to and was made the law by *Page 517 the people of the state. No reason is apparent why the Legislature, in proposing the amendment, should have intended one thing and said another; should have so framed it as to become a mere idle gesture as affecting judges of probate. Courts should not impute any such intention.
But if such were true, what did the voters of Alabama say when they ratified it? They said no judge of probate in Alabama during the period named should be compensated from fees or otherwise exceeding $6,000 per annum.
The express and unambiguous wording of the amendment leaves no room for construction. The purpose to include county officers, both in the maximum fixed and the time it was to begin and to end, is just as clear and unequivocal as to state officers.
If we seek for reasons behind such provision, we may well suppose the fitness of things suggested that county officers should not continue to receive compensation for services in excess of that received by the highest executive and judicial officers of the state. Retrenchment in county affairs as well as state affairs was a subject of consideration by that Legislature.
County officers generally draw on the county treasury for substantial sums. Especially is this true as to the judge of probate, who draws from the public funds, not only ex officio fees in the usual sense, but express fees for specific services. Moreover, the fees paid by individual citizens under the fee system constitute a law-imposed burden for governmental purposes; compensation of public officers for official services. They are in lieu of taxation in the usual form.
By a uniform course of legislation, and constitutional reform, when officers have been put on salaries, these fees have continued to be collected for the public treasuries. Witness the clerk of the Supreme Court, circuit solicitors, counties with constitutional salary amendments, etc.
The intent of the amendment is, I think, not in doubt at all.
The only question of difficulty is whether it can be given force according to its intent because of omissiveness or want of legislation necessary to its administration.
Needless to say every sound rule of construction demands that constitutional provisions shall not fail in the accomplishment of their full purpose, if by any reasonable construction such result can be avoided.
The chief, if not the only, difficulty in applying this amendment to fee officers is administrative in character.
No one questions that the compensation of $6,000 means compensation to the officer for his services; does not contemplate that out of same he shall pay for all the clerical help and other expense of his office. Legislators certainly knew that such expenses varied greatly in the several counties; indeed, might outrun $6,000 in larger counties. Reasonable expenses, the same, for instance, as he was theretofore paying out of his own pocket, or such higher or lower sums as were paid out in good faith during this period, are a proper charge on funds received. But the express terms of this amendment, from the day it became law, told every judge of probate that all fees received above his compensation at the rate of $6,000 per year, and the proper expenses of his office, were not his own, but held in trust.
But, it is said, the beneficiary of the trust is not named, nor is there any one named with whom he may settle and get an acquittance.
That they were public funds held in trust he had every reason to know.
Courts of equity have been known to construe and define trusts at the instance of trustees when in doubt. Certainly they afford a remedy for accounting and settlement of trusts.
I am not convinced that any judge of probate could not have found a way to account for and pay over the surplus in his hands had he so desired, even without legislation. But I think he was under no duty to do so here because the Hendley Act provided the necessary administrative machinery for settling the trust.
The amendment, by its terms, was to cover a period of little more than two years. Before that period expired, the Legislature would again be in session.
I can see nothing impossible, legally nor practically, in allowing the judges of probate to go on their way unmolested, collecting and keeping account of fees as the law required, knowing that any surplus so collected, after a proper accounting, was held in trust, followed by an act before the expiration of the period covered *Page 518 by the amendment looking to an accounting and paying over the trust funds as directed by such act.
So construed, section 3 of the Hendley Act has none of the features of an ex post facto law. The misdemeanor declared is for a future violation of the act itself. I do not agree to the proposition that an absolute title to all these fees vested in the judge of probate as received, with the right to dispose of same at will. The amendment expressly negatives such notion.
I therefore dissent from the majority opinion.