Opinion of the Justices of the Supreme Court in answer to questions propounded by the Senate, under Code 1940, Tit. 13, § 34, relating to the validity of Senate rules requiring a bill or resolution proposing an amendment to the Constitution to be referred to a committee.
Senate Resolution No. 10
Be it resolved by the Senate of Alabama, That the Justices of the Supreme Court, as provided under the authority of Title 13, Section 34, Code of Alabama 1940, are hereby respectfully requested to render to' the Senate their written opinion on the following important constitutional ' questions :
1. Section 53 of the Constitution pro-' vides as follows: Each house ' shall have the power to determine the rules of its procedure.
2. Rule 25 of the Rules of the Senate of Alabama provides as follows:
“25. The Presiding Officer of the Senate shall in the presence of the Senate, sign all bills and joint resolutions passed-
3. Section 284 of the Constitution of Alabama provides as follows:
“284. Amendments may be proposed to this constitution by the legislature in the manner following: The proposed amendments shall be read in the house in which they originate on three several days, and, if upon the third reading three-fifths of all the mémbers 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 several days, 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. * * * ”
4. Your opinion is requested as to whether or not the underscored portion of Rule 25 of the Senate of Alabama contravenes the provisions of Section 53 of the Constitution of Alabama, 1901.
5. Your opinion is requested as to whether or not the underscored portion of Rule 25 of the Senate of Alabama contravenes the provisions of Section 284 of the Constitution of Alabama, 1901.
6. In the event your answer to the above questions are in the affirmative then the Senate desires to be advised in writing by you
(a) Of the procedure to be followed insofar as Rule 27 of the Senate of Alabama is concerned; and
(b) Under said Rule 27 what motions may be made in regard to pending constitutional amendments before the third reading of such proposed constitutional amend-1 ment without contravening the provisions of Section 53 and 284 of the Constitution of Alabama; and
(c)After a proposed constitutional amendment receives its second reading, does it take its place on the calendar for its third reading when reached in regular order, or does it take priority over bills on the calendar?
To the Senate of Alabama State Capitol Montgomery, Alabama Gentlemen:
In Senate Resolution-No. 10 the following inquiries, among others, were propounded to the Justices of this Court by the Senate of Alabama:
“4. Your opinion is requested as to whether or not the underscored portion of Rule 25 of the Senate of Alabama contravenes the provisions of § 53 of the Constitution of Alabama, 1901.”
“5. Your opinion is requested as to whether or not the underscored portion of Rule 25 of the Senate of Alabama contravenes the provisions of § 284 of the Constitution of Alabama, 1901.”
That portion of Senate Rule 25 which is italicized in the inquiry reads as follows: “ * * * And all the resolutions proposing amendments to the Constitution or to which the approbation or signature of' the President may be requisite or which may grant money out of the contingent fund shall be treated in all respects in the introduction and form of proceedings thereon in the Senate in a similar manner with bills.”
As here pertinent, § 53 of the Constitution of 1901 reads: “Each house shall have power to determine the rules of its proceedings * *
Section 284, as amended, Constitution. 1901, as here pertinent is as follows:
“Amendments may .be proposed to this-constitution by the legislature in the manner following: The proposed-amendments, shall be read in the house in which they originate on three several days,' and, if upon the third reading three-fifths of all the members elected to that house shall
That portion of Senate Rule 25 set out above relates to three types of resolutions, viz., (1) resolutions “proposing amendments to the Constitution,” (2) resolutions "“to which the approbation or signature of the President may be requisite,” (3) resolutions “which may grant money out of the •contingent fund.” But considering your letter of inquiry as a whole, we think it clear that the Senate of Alabama desires that the Justices of the Supreme Court of Alabama express their individual opinions .as to whether the provisions of Senate Rule 25, supra, that “resolutions proposing amendments to the Constitution * * * .shall be treated in all respects in the introduction and form of proceedings thereon in the Senate in a similar manner with bills,” violates § 53 of the Constitution of 1901 or § 284, as amended, of the Constitution of 1901.
The letter of inquiry makes no reference “to the rules of the Senate relating to the manner in which bills are treated as to their introduction and the form of proceedings thereon. However, it appears that Rule 26 of the Senate provides as follows: '“Bills on first reading shall be referred to •a committee, and shall be read a second time when returned from the committee on any subsequent day.”
Therefore, we proceed to answer the following question: Can the Senate of Alabama, under its rule-making power, legally require that a bill or resolution proposing .an amendment to the Constitution of this .state be referred to a committee?,
We refer briefly to certain principles expressed in our decisions and in advisory opinions of the individual Justices which have some bearing on this question.
(1) The Constitution itself prescribes the exclusive modes by which it may be altered or amended, or its effect and operation changed. Both of these exclusive modes are plainly stated in §§ 284-287 of the Constitution. Only through a constitutional convention, called and convened as provided in the existing organic law, or through amendment proposed and adopted as provided in the existing organic law, can the Constitution be altered or changed. Jones et al. v. McDade, 200 Ala. 230, 75 So. 988; Johnson v. Craft, 205 Ala. 386, 87 So. 375.
(2) Proposals for the submission to the electorate of amendments to the Constitution may be submitted through act or resolution. Jones et al. v. McDade, supra.
In proposing amendments to the Constitution to be voted upon by the electorate, the legislature is not exercising its other power to make laws. Jones et al. v. McDade, supra; Johnson v. Craft, supra; In re Opinions of the Justices, 227 Ala. 296, 149 So. 781.
(4) Section 62 of the Constitution of 1901, which provides in part that “no bill shall become a law until it shall have been referred to a standing committee of each house,” has no application to an act proposing an amendment to the Constitution. In re Opinions of the Justices, 227 Ala. 296, 149 So. 781.
This principle is, of course, applicable to. a resolution proposing an amendment tQ the Constitution.
We are of the opinion that when § 53 and § 284, as amended, of the Constitution of 1901 are considered together, the Senate, as a deliberative body, has the authority to duly adopt a rule of procedure requiring that all proposals to amend the Constitution of this state be referred to a committee.
The provision that “each house' shall have power to determine the rules of its proceedings” is not restricted to proceedings of the body in ordinary legislative
We think that the Senate rule requiring proposed amendments to the Constitution to be referred to a committee does not violate § 284 of the Constitution for the reason which we will explain.
Section 284 declares that proposed amendments to the Constitution shall be read in the house in which they originated on three several days. Section 63 declares that every bill shall be read on three different days in each house. No one has ever .contended that § 63 means any more than that the bill to be a valid law must have those three readings, or that either house may not kill a bill without having the three readings. So as to § 284, it means no more than that for a proposed amendment to be effective it must have a reading on three several days in each 'house, and upon the third reading a favorable vote of three-fifths of all the members elected to each house, respectively. It does not direct the procedure by which those readings shall be conducted or what shall lead up to them.
If the Senate sees fit to refer the proposed amendment to a committee after it has had one reading, § 284 does not prohibit that procedure or direct any other. The Senate could act on the matter as it sees fit pursuant to its rules, with the one requirement that to be valid it must have a reading on three several days, just as a bill, to become a valid law, must have three readings, and the latter must be referred to a standing committee, acted on by such committee and returned from it, under § 62, Constitution, in order to become a law. Reference to a committee is not required of a constitutional amendment, but it is not prohibited by the Constitution. If it is referred to a committee it could have the required readings. The reference to a committee cannot deprive the Senate of causing such readings, regardless of what the committee might do or fail to do.
But the point is that the mandatory provisions of § 284 are so only for the purpose and to the end that the amendment may be valid when adopted. There is nothing in it to make the Senate do anything it does not wish to do, but only that it must observe the requirement to obtain a valid amendment.
Of course, if the Senate wishes to do so it may, pursuing its own procedure, order the several readings to be had without referring the proposed amendment to a committee. This would comply with § 284. This cannot be done of a bill controlled by § 62 of the Constitution if the bill is to be a valid enactment.
If the proposal is referred to a committee under the Senate rules and the committee does not report it back, the Senate has the power under its procedure to recall it from the committee for a second reading.
In view of the conclusion reached, it is. not necessary to consider the other questions set out in your letter of inquiry.
Respectfully submitted,
ARTHUR B. FOSTER J. ED LIVINGSTON THOMAS S. LAWSON DAVIS F. STAKELY Associate Justices.
In my opinion § 284 of the constitution does not contemplate referring constitutional amendments to a committee and the very fact that said amendments were not included in the provisions of the constitution which require bills to be referred to a. committee negatives the thought that proposed amendments are to be referred to a committee. The law in respect to the method of proposing amendments is clearly stated in § 284 and clearly interpreted in Johnson v. Craft, 205 Ala. 386, 87 So. 375, wherein it was observed:
“The Constitution of Alabama, like that of the -nation and of the other states, is.
“Upwards of 60 years ago this court had occasion to consider and to pronounce constitutional principles referable to the change by amendment of the organic law. The opinion then delivered by Justice Goldthwaite established Collier v. Frierson, 24 Ala. 100, as a leading authority in our ■country on the subject under consideration. Many courts of the highest repute, as well as text-writers, have accorded the doctrine there announced the unreserved acceptance its obvious soundness deserves, and have given that pronouncement its own great place in the constitutional jurisprudencé of the republic. With a brevity, and also a comprehension, that is notable and gratifying, it was there said:
“ ‘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. We scarcely deem any argument necessary to enforce this proposition. The Constitution is the supreme and paramount law. The mode by which amendments are to be made under it is clearly defined. It has been said that certain acts are to be done, certain requisitions are to be observed, before a change can be effected. But to what purpose are these acts required, or these requisitions enjoined, if the Legislature, or any other department of the government, can dispense with them. To do so would be to violate the instrument which they are sworn to support, and every principle of ’ public law and sound constitutional policy requires the courts to pronounce against every amendment, which is shown not to have been made in accordance with the rules prescribed by the fundamental law.’
“But recently this court approvingly reproduced the quoted pronouncement, and declared, in orderly sequence and in expression of unquestioned judicial power, that it was the function of the judiciary to determine whether the prescriptions of the organic law itself have been observed in the effort to amend the Constitution. Jones v. McDade, 200 Ala. 230, 233, 75 So. 988. This doctrine of Collier v. Frierson accords with and, in a sense, illustrates the even broader constitutional principle this court thus expressed (through Stone, J.), by approving quotation from Cooley, in Perry County v. [Selma, M. & M.] Railroad Co., 58 Ala. 546, 556:
“ ‘We adopt, as our own, the language of one of the soundest and most thorough thinkers and jurists, who have written on the subject of organic law, embodied in our Constitution: “The courts tread upon very dangerous ground when they venture to apply the rules, which distinguish directory and mandatory statutes, to the provisions of a Constitution. Constitutions do not usually undertake to prescribe mere
The above principle was recently reaffirmed by this court in Re Opinion of The Justices, ante, p. 89, 39 So.2d 665.
Respectfully submitted,
JOEL B. BROWN Associate Justice.