[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 389 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 390 McCLELLAN, J., after stating the case, delivered the opinion of the court.
The first objection directed against the "road bond amendment" is that by the act *Page 393 purporting to submit the proposed amendment to the electorate, the Legislature expressly undertook, through section 4, to delegate to the Governor the power to fix the date on which the election upon this proposal should be held. To soundly determine the merit of this objection it is appropriate to orderly, logical treatment to reiterate in premise some of the obvious truths that by written Constitutions have developed.
The Constitution of Alabama, like that of the nation and of the other states, is the supreme law within the realm and sphere of its authority. Subject only to the restraints resulting from the Constitution of the United States, the Constitution of Alabama is the highest form and expression of law that exists in this state. The source of its creation and the character of its sanction, viz. the people's deliberate will, invest the Constitution with its paramount quality. The Constitution's control is absolute wherever and to whatever its provisions apply; and every officer, executive, legislative, and judicial, is bound by oath (section 279) to support the Constitution, to vindicate and uphold its mandates, and to observe and enforce its inhibitions without regard to extrinsic circumstances. It commits to no body, officer, or agent any authority or power whatever to change or modify or suspend the effect or operation of its mandates or its prohibitions; the instrument itself prescribes the exclusive modes by which it may be altered or amended, or its effect and operation changed. Otherwise than as these exclusive modes contemplate and authorize the Constitution's alteration, its character is permanent, its force and influence enduring. Both of these exclusive modes are plainly stated in sections 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. It is with the latter mode we are now concerned.
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 jurisprudence 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. 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 Constitutions: '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 rules of proceeding, except when such rules are looked upon as essential to the thing to be done; and they must then be regarded in the light of limitations upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims, and fix those unvarying rules, by which all the departments of the government must at all times shape their conduct. * * * We are not, therefore, to expect to find in a Constitution provisions which the people, in adopting it, have not regarded as of high importance, and worthy to be embraced in our instrument which, for a time at least, is to control alike the government and the governed, and to form a standard by which is to be measured the power which can be exercised as well by the delegate, as by the sovereign people themselves. If directions are given respecting the times or modes of proceeding in which a power should be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only.' Cooley Const. Lim. 78."
The provisions of the Constitution providing for its amendment are mandatory, *Page 394 not directory — binding on the people themselves and concluding every department, body, officer, and agency under its authority. Authorities supra; 12 C. J. pp. 688, 689. The power granted the Legislature to propose amendments to the Constitution is a particular, special power, not possessed by the Legislature otherwise than through grant by the instrument itself. It can only be exercised in the mode prescribed, and the mode defined is the measure of the power. Collier v. Frierson, supra; Oakland, etc., Co. v. Hilton, 69 Cal. 479,514, 11 P. 3; Jones v. McDade, supra. It results from the system and the provision of the Constitution that in proposing amendments to that instrument, to be voted upon by the electorate, the Legislature is not exercising its other power to make laws. Jones v. McDade, supra; Livermore v. Waite,102 Cal. 113, 36 P. 424, 25 L.R.A. 313, 315, 316; 12 C. J. p. 693; 6 Rawle C. L. § 19, pp. 28, 29. Recognition of this last-stated principle — resultant, as it is, from those previously reiterated — is an essential prerequisite to any sound, logical conclusion upon the objection now being considered. To ignore it or to deny it appropriate effect is to invite error in judgment and to court the affirmation of inexcusable fallacy.
Since "every requisition which is demanded by the instrument itself," in defining the mode of its amendment, is mandatory, and since to omit the observance "of any one [of them] is fatal to the amendment," the determination of the inquiry raised by the objection now under consideration turns upon the effect to be accorded the provisions of section 284, whereby it is provided that the "Legislature shall order an election by the qualified electors of the state upon such proposed amendments, 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 appointed by the Legislature, not less than three months after the final adjournment of the session of the Legislature at which the amendments were proposed"; it being further provided in section 284 that the election required should be held "on the day so appointed." In the act proposing this "road bond amendment" the Legislature undertook, through section 4, expressly to delegate to the Governor the function and the discretion to appoint the date upon which the election on this amendment should be held, thereby leaving wholly unexercised by the Legislature the discretionary power granted to it to appoint the day for such election. The meaning and effect of the provisions of the Constitution defining exclusively the agency or entity to which the discretion to appoint the day for such election is committed, and by which that discretion must be exercised, is positive and plain, and neither allows nor requires any recourse to construction to derive its unmistakable intent or to understand its unavoidable demand. The language itself avows that intent. Reference to the "Legislature" in section 284 is as distinct a designation of a constitutional entity as any reference elsewhere in the organic law to the Governor, to the Supreme Court, or to any other governmental agency mentioned therein is a distinct designation of the particular constitutional entity specified in the particular text of the instrument. If the Governor had been designated as the repository of the discretionary power to appoint the day for such elections, no one would assert that such power could be delegated to the Legislature, or to any other entity to exercise the discretion that had been exclusively granted to the Governor.
Obviously, the reposition by the Constitution of such a power in a defined entity, to accomplish a particular purpose of the gravest constitutional character, is a denial of its grant to or its rightful exercise by any other than the entity to which the Constitution itself commits the power to appoint the day for elections on proposed amendments to the Constitution. It is not even contended on this appeal that the designation of the repository of this discretionary power is not the Legislature. We deduce from the argument and from the briefs for the appellees this, as the substance and legal effect of the contention for the appellees: That the designation of the Legislature as the repository of this power is to that entity in its law-making capacity, in which realm of legislative action it has been often held permissible for the Legislature to delegate to others the administration of the law the Legislature has validly enacted. The contention cannot be supported, much less vindicated. If anything other than the plain, unambiguous terms of the organic law were needed to further demonstrate that the Constitution reposed this power in the Legislature as an entity — not in its capacity to make laws, to enact statutes — that unnecessary, but additional, factor is found in these indubitable terms in section 287:
"No act or resolution of the Legislature passed in accordance with the provisions of this article, proposing amendments to this Constitution, or calling a convention for the purpose of altering or amending the Constitution of this state, shall be submitted for the approval of the Governor, but shall be valid without his approval."
It is to be observed that the form of expression employed is positive and prohibitory, and that it manifests an intent of the most emphatic character. Elsewhere in the Constitution the Legislature as a law-making institution is treated in the greatest detail, and the way in which this function of the Legislature shall be performed is prescribed with marked particularity. Under the Constitution the Governor is made a part of the law-making power, the legislating power. *Page 395 He may propose amendments to legislative products; he may veto them; he may allow them to become law by the efflux of the time prescribed in the Constitution; or the Legislature may refuse his proposed amendments and give the bill the form and effect of law notwithstanding the action of the Governor. No bill can become a valid law under the Constitution of this state that is not presented to the Governor. The quoted prohibitory terms of section 287 are directly opposed to vital features of the Constitution's system for making laws, for enacting statutes, in that section 287 forbids the submission to the Governor of acts or resolutions calling a constitutional convention or proposing amendments thereto, thereby expressing the indubitable intent to take the subject of the Constitution's change or amendment without the law-making power of the Legislature. This view is even further demonstrated by the provision of section 125 — the section which deals with the Governor's participation in the process of passing laws, as well as action by the Legislature in its law-making capacity — where it is provided:
"Every vote, order, or resolution to which concurrence of both Houses may be necessary, except on questions of adjournment and the bringing on of elections by the two houses, and amending this Constitution, shall be presented to the Governor. * * *" (Italics supplied.)
This exception with respect to the amending of the Constitution is set down in the very body of the instrument, where legislative power was the subject of constitutional consideration, thereby also evincing the same intent with respect to the mode of amending the Constitution that is so unmistakably declared in the distinct article (sections 284-287) devoted to the "Mode of Amending the Constitution."
The acceptance of this contention for appellees would involve the interpolation of qualifying terms not written in the Constitution. Its effect upon the instrument's plain meaning would be to substitute for the Constitution's specific designation of the Legislature as the exclusive repository of this particular power a prescription that by law the Legislature should appoint a day upon which such elections should be held. When the makers of the Constitution intended to treat the Legislature in its capacity of law-maker — a field and process entirely distinct from its function in formulating and proposing amendments to the Constitution, as has been before noted in this opinion — they left the constitutional purpose in no rational doubt. The sections of our Constitution to which we will, at this point, allude are pressed by counsel for appellees as furnishing analogies, supporting considerations of their interpretation of "Legislature" as employed in section 284. They are sections 156, 161, 190, and 243. In section 156 the provision with respect to the time and place of holding elections for members of this court is that they shall be fixed "by law"; in section 190 the provision is that the "Legislature shall pass laws * * * to regulate and govern elections"; in section 243 the provision confers certain powers "upon the Legislature, whose duty it shall be to pass laws" regulating railroad tariffs, etc. In each of these sections the constitutional intent is expressly referred to the Legislature in its capacity to make laws, to enact statutes. In section 161 the same intent is made patent through the use of the words "to provide," in empowering the Legislature to continue the holding of courts when their judges fail to attend regular terms.
Code, §§ 440, 441, vesting discretion in the Governor with respect to the dates for special elections, are referable to what is now (in part) section 190 of the Constitution, to which we have first alluded. It was to a like general provision — to that we have just alluded to in section 190 — that this court, in May Thomas Hdw. Co. v. Mayor, 123 Ala. 306, 26 So. 537, referred the ballot form prescribed by the Legislature in submitting the "Birmingham amendment" under the Constitution of 1875, in which there was no provision requiring the Legislature to appoint the day for election on amendments submitted to the electorate, as is one of the prescriptions in the present Constitution. Neither the opinion nor the decision in the May-Thomas Case has any bearing upon this appeal. The old (1875) Constitution having committed to the law-makers the power and enjoined the duty to "pass laws" governing elections, the court referred the action there questioned to that purely legislative authority, the power and duty to "pass laws."
Another analogy pressed for appellees is asserted as upon the provisions of section 4 of article 1 of the Constitution of the United States, which provides:
"The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators."
The argument pressed is that the Congress has recognized as valid special elections called by a Governor in exercise of a discretion, delegated by the Legislature, to fix the date thereof to fill vacancies in a state's representation in the Congress. Paine on Elections, § 299, is cited to support the asserted analogy. Reference to this provision of section 2 of article 1 of the Constitution of the United States will serve to explain and render unimportant Paine's text in respect of the part cited on the brief:
"When vacancies happen in the representation from any state, the executive authority *Page 396 thereof shall issue writs of election to fill such vacancies."
Paine, in the same section (299), affirms, and with obvious correctness, that the power conferred by the section last quoted "cannot be delegated by the Governor"; that "it was not competent for the Governor to delegate the power to fix the time of the election, and that the illegality could not be cured by subsequent legislation." Recurring to section 4 of article 1 of the Constitution of the United States, it is evident that the reference to the Legislature is to that body in its capacity as law-maker, the capacity in which such bodies provide the "regulations" mentioned in the section. Such was undoubtedly the view of the Supreme Court in Ex parte Siebold,100 U.S. 371, 25 L. Ed. 717; the court treating the section (4 of article 1) as vesting legislative power in the state, not in the particular body mentioned in the section.
"Analogy, as we all know, is a good servant, but a bad master; for, when master, it does more to blind than it may previously have done to illuminate."
The Prohibitory Amendment Cases, 24 Kan. 700, are strongly relied upon by the appellees to sustain the validity of this amendment. While citing and quoting without the slightest criticism the decision of this court in Collier v. Frierson,24 Ala. 100, its doctrine was wholly unattended, and declarations were made by Justice Brewer that contradict the very bases upon which the permanency of constitutional government rests and affront the very principles that underlie the employment of written constitutions as the highest expression of the people's will. The California court, in Oakland, c. Co. v. Hilton,69 Cal. 479, 497, 11 P. 3, 11, said of this Kansas Case:
"The reasoning by which the learned court reached the conclusion it did is not based on any sound legal principles, but contrary to them. Neither the argument nor the conclusion can command our assent or approval. The argument is illogical, and based on premises which are without any sound foundation, and rest merely in assumption."
The dissection and criticism of this decision and opinion (24 Kan. 700) by the California court — only a part of which we have quoted — is commendably mild and incontestably well founded. So recently as 1912, the Kansas court, in State ex rel. v. Sessions, 87 Kan. 497, 124 P. 403, pronounced constitutional principles and enforced a conclusion without so much as citing the Prohibitory Amendment Cases — principles and conclusion that the doctrine of the earlier decision would have denied acceptance or attainment. The principles lately announced and applied by the Kansas court are those stated in Collier v. Frierson, and Perry County v. Railroad Co., supra. The opinion in 24 Kan. 700, is unsound, and cannot be accepted or approved.
Where a mandate of the Constitution is plain and unambiguous, and that mode has not been observed, the judicial duty is likewise plain and inescapable. In the very recent pronouncement made in Ward v. McDonald, 201 Ala. 237, 244,77 So. 827, 834, it was said, by way of approving quotation from Cooley (7th Ed., p. 105):
"Where, however, no ambiguity or doubt appears in the law, we think the same rule obtains here as in other cases, that the court should confine its attention to the law, and not allow extrinsic circumstances to introduce a difficulty where the language is plain. To allow force to a practical construction in such a case would be to suffer manifest perversions to defeat the evident purpose of the lawmakers. 'Contemporary construction * * * can never abrogate the text; it can never fritter away its obvious sense; it can never narrow down its true limitations; it can never enlarge its natural boundaries.'"
In State ex rel. v. McGough, 118 Ala. 166, 24 So. 397, it was said:
"Whenever a constitutional provision is plain and unambiguous, when no two meanings can be placed on the words employed, it is mandatory, and courts are bound to obey it. Such a mandate, whether wise or unwise, whether founded upon good reasons or not, is obligatory, and cannot be construed away by the history of the past, or by any mischief that it may be supposed it was intended to remedy."
So, too, this court has written in Little v. Foster, 130 Ala. 154,30 So. 477, also reproduced in Ward v. McDonald, supra:
"The framers of the Constitution 'must be understood to have intended what they said. * * * We can only learn what they intended, from what they have said. It is theirs to command, ours to obey. When their language is plain, no discretion is left to us. We have no right to stray into the mazes of conjecture, or to search for imaginary purposes.' "
As said in State ex rel. v. McGough, 118 Ala. 166, 24 So. 395, the doctrine of cases like Taylor v. Woods, 52 Ala. 474, cited on brief for appellees, is superseded and inapplicable, where the constitutional mandate is, as here, plain and unambiguous in its terms. Our opinion is, and we so hold in expression of the plain letter and intent of section 284 of the Constitution, that the Legislature omitted, by failing itself to appoint the day for the election, to observe that prerequisite to the valid submission of the "road bond amendment" to the electorate of the state, and that the proposed amendment, not having been constitutionally submitted to an election "so appointed," was and is invalid, and never became a part of the Constitution of Alabama.
This conclusion renders relatively unimportant the other grounds or reasons asserted *Page 397 against the validity of the "road bond amendment." Nevertheless, it is thought appropriate to state, without finally deciding their merit, the other grounds assigned, thereby noting possible imperfections in submitting amendments to the Constitution that may in the future surely be avoided.
A. The act embodying the proposed "road bond amendment" was submitted to the Governor in plain violation of this provision of section 287:
"No act or resolution of the Legislature passed in accordance with the provisions of this article, proposing amendments to this Constitution, or calling a convention for the purpose of altering or amending the Constitution of this state, shall be submitted for the approval of the Governor, but shall be valid without his approval."
It was the evident design of the provision to remove the Governor from all participation in the process of formulating or perfecting any "act or resolution" of the Legislature in virtue of the authority and power there described.
B. The act here involved having been submitted to the Governor in violation of the above-quoted provision, after its perfection by the judgment of the houses, the Governor returned it with a proposed amendment "to the bill," referring, however, to a paragraph therein that contained the proposed amendment to the Constitution. Thereupon the houses concurred in the Governor's proposed amendment "to the bill"; the journals reciting nothing more than a reading of the Governor's proposed amendment, and being wholly silent as to any reading of the proposed amendment to the Constitution, either as it was before or after the Governor's proposal received the consideration of the houses. The decision in Jones v. McDade, 200 Ala. 230,75 So. 988, involved no such question as that projected by the matters and acts just stated. There the proposal was in process of formulation in the houses, was in fieri, when the amending was done. Here the Legislature had completed its consideration, at least to the extent of a perfect accord between the houses. Whether a new beginning was necessary in these circumstances is a question of doubtful solution. If the amendment proposed by the Governor was not constitutionally made a part of the proposed amendment to the Constitution, then the electorate did not vote upon an amendment proposed, in a constitutional sense, by the Legislature.
C. The act proposing the "road bond amendment" prescribed a minimum period of publication one week less than the Constitution (section 284) exacts; but the Governor observed the Constitution.
D. In respect of expression, material features of the proposed "road bond amendment" are most remarkable. In terms therein it refers to a fund to be derived from a "state license tax on all automobiles or motor driven vehicles * * * to be levied and collected on all such vehicle privilege license tax now levied or which may hereafter be levied by law. * * *" The language contemplates a tax on a tax — an absurdity, of course. It is said that familiar rules of construction would allow the substitution of "and" for "on" in the quoted phrase. When it is considered that the electorate actually voted upon and for the proposed amendment, thus introducing a factor of constitutional consequence, it is at least doubtful whether the usual rules of construction would be applicable, for who can say the voters intended to express their judgment upon anything different from the amendment as written?
Again: Whether the bonds to be issued under the proposed "road bond amendment" were to carry the pledge or promise of the full faith and credit of the state of Alabama, or were to be but a charge upon, alone to be paid out of, the particular fund derived from the license or privilege tax on motor-driven vehicles, is at least doubtful. If the credit of the state was intended to be pledged to the payment of the bonds, then a state debt would, of course, be thereby created and evidenced; and, if so, it may be inquired whether the general obligation of the state can be imposed alone upon a class, the users of motor-driven vehicles within its borders.
Again: Whether the terms of the proposed "road bond amendment" devoting the proceeds of such taxes to the particular objects enumerated therein are qualified or contradicted by the later broad provisions expressly providing that the funds derived from the sale of the bonds should be expended as the "highway department" may direct, subject to the approval of the Governor, is also a matter of doubt.
E. Section 7 of the act proposing the "road bond amendment" is said to contain matter without any proper relation to the submission of the amendment under the Constitution; that it is but legislation.
We conclude: When it is considered that the design of this effort was to authorize the issue of $25,000,000 in bonds to be sold to purchasers; that the plan selected involved the amendment of the Constitution, which, through section 213, prohibits any new debt against the state except for defined purposes and in stipulated circumstances, pronouncing "absolutely void" every other act incurring debts otherwise, and which, through section 93, inhibits the state from engaging in works of internal improvement, operating a departure from the constitutional policy first declared in the organic law of 1875, it is nothing less than astounding that such a colossal plan and purpose could have progressed through all its stages without some one in authority turning to the Constitution of the state and at least reading its commands as the only *Page 398 medium through which all the people can and do speak when that instrument's amendment is proposed.
The proposed "road bond amendment" being void, a nullity, the complaining taxpayer, the appellant, is entitled to the injunctive relief he seeks. His bill was not subject to the demurrer. The trial court erred in sustaining the demurrer. The decree is reversed and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.
SOMERVILLE, GARDNER, and THOMAS, JJ., dissent.
In the original opinion delivered on February 3, 1921, this appeal and the important questions involved in its disposition were treated and considered in the customary, normal manner of judicial deliverance by the highest court of the state of Alabama. That seemed the proper way in which the great duty of this court should be performed. On pages 8 and 9 of the printed brief for the appellees in support of the rehearing it is said:
"The holdings of the court in this case have made a profound impression upon the public mind. In spite of the very clear and forcible logic with which the majority of the court analyzed and decided the questions presented for its consideration, the mind of the public seems to have been utterly unable to follow the argument or to understand the conclusions reached by the majority of the court, and the lay feeling is almost universal that the will of the people has been defeated by a technicality in which there is no substance. The attorneys for appellee do not participate in this feeling. When they read the opinion they now challenge they were impressed with its clearness, its force, its logic, and judicial temper, but were nevertheless encouraged to search for a week link in the argument by a feeling that, whenever there is a consensus of opinion among a large part of the thinking public upon a great public question in which they are deeply interested, a conclusion in conflict therewith may be examined with the hope, at least, if not with an almost superstitious expectation, that some essential consideration has, in some way, been overlooked."
Since the decision on February 3, 1921, declaring that this "road bond amendment" did not become a part of the Constitution, because of the violation of mandatory provisions of the Constitution, there has appeared distinct manifestations of a desire on the part of some to undertake to influence, through a cultivated public clamor, the judges who formulated the judgment, when they came, as they have now, to reconsider that judgment on rehearing. Ignorance, and nothing worse, accounts for some, if not all, of this activity and publicity; ignorance of the distinction between anarchy and constitutional government; ignorance of the imperative necessity to maintain and preserve the independence of the judiciary, a condition that cannot prevail if extraneous circumstances, unrelated to the law or to judicial processes, are countenanced by worthy citizens; ignorance of the fact that judges are bound by oath, as well as by every sense of self-respecting fidelity and responsibility, to enforce the Constitution, an obligation that rests on the conscience of the individual judge, to satisfy which it is given no other judge, or judges, to do, for no judge is made the keeper of the conscience of another judge; ignorance of the fact that no power or authority is conferred on this court or its judges to forgive, condone, or heal violations of plain, unambiguous mandates, prohibitions, or limitations of the Constitution, even if the violation results in the greatest good or promotes a universal benefaction; for, if "forced and unnatural constructions" of plain, unambiguous provisions of the Constitution are accepted by the courts, "they inflict a wound upon the Constitution which nothing can heal." Sadler v. Langham, 34 Ala. 335, where this court, through Stone, J., approved this statement of an absolute judicial rule:
"My rule has ever been to follow the fundamental law as it is written, regardless of consequences."
Recurring now to the thought of the quotation (ante) from the brief supporting the application, this court contemplates with satisfaction the affirmative disavowal, by the great array of counsel representing appellee, of any participation in the unfortunate, wholly ill-founded sentiment there said to have found lodgment in the lay mind that this court had, in its judgment, introduced a "technicality" to defeat the popular will or desire. The state of the "public mind" to which counsel refer would seem impossible of creation or existence in this enlightened state, unless it is assumed that those entertaining the sentiment indicated are unaware or have forgotten that Alabama has a Constitution, supreme and enduring until changed in accordance with its prescriptions, and binding upon all the people, as well as every judge and other officer who has taken his solemn oath to support and vindicate the Constitution. If this "public mind" should consider, as counsel have candidly done in their unreserved disavowal, that all are subject to the paramount government of the Constitution, they would come at once to *Page 399 know that there is no such thing as a "technicality" when the enforcement of mandates of the Constitution is the judicial action required by the Constitution. The Constitution contains no idle assertions, no meaningless language, no ephemeral purpose, no recognition of the right of even all the people — except through revolution and attendant anarchy — or of the Legislature or of the courts to refuse obedience to its supreme authority, or by evasion or subterfuge to defeat the Constitution as the highest expression of the people's will. The most eminent writer on Constitutions and the jurisprudence that gives them effect (Cooley, p. 88) has said, what all must know, that the court which permits public sentiment to influence a construction of a Constitution that is not warranted by its intent "would be justly chargeable with reckless disregard of official oath and public duty" — a charge that represents the acme of odium and the superlative of infidelity. Now, as ever before, the penalty for the violation of the Constitution is that the product of the offense is a nullity.
It is suggested in brief for appellee on rehearing that the judgment of this court on this appeal will annul the "soldiers' poll tax amendment," resulting in the electoral disqualification of those within its purview, who, because of it, availed of the exemption (until September 30, 1923) there prescribed. The validity or invalidity of the "soldiers' poll tax amendment" is not before this court. Its validity or invalidity cannot be determined in this cause. When, if ever, the question of its validity is presented here in accordance with "due process of law" and the practices of this court, the court will perform its duty in the premises. The sons of Alabama who with honor to their state served in the World War, under the colors of a nation that stood, as always, for the supremacy of right over might, for the observance of the obligations of duty to constitutional government, and for fidelity to the institutions of state that protect the dearest interests of those subject to its blessings and bearing its burdens, desire, we apprehend, the fearless maintenance and vindication of the Constitution of Alabama, regardless of the popularity or unpopularity of the result of the performance of that duty.
It is now insisted in support of the application for rehearing that the "road bond amendment" has acquired a status — by lapse of time (not a year since its proclamation, we may note), by favorable vote of the electorate participating in the election, and by some action (not stated in the record before this court) under the theory that the amendment had been constitutionally adopted — that now precludes judicial consideration; this manifestly from motives attributable to expediency only. It is expressly admitted in brief that the question of the validity of the "road bond amendment" is a judicial question, as was held in the original opinion. The stated contention is rather surprising, in view of the history of this cause, the nature and object of the "road bond amendment," and the thoroughly justified public purpose which prompted the presentation of this cause to this court — "to test" the validity of the "road bond amendment." The vote on the "road bond amendment" was taken on February 16, 1920. The proclamation of the Governor, declaring the "road bond amendment" adopted, was issued on March 1, 1920. This bill to test every suggested objection to the validity of the amendment was filed December 22, 1920, practically 10 months after the executive proclamation was issued. On the argument of the cause in the Supreme Court it was stated that this was a "friendly suit" to test the validity of the "road bond amendment" as upon the several grounds of objection set forth in the pleading, and the court was advised of the hope of all persons interested that prompt decision would be given this very important cause.
If the contention now made is sound, it is manifest that practically all the labor and care bestowed by the court and by counsel upon the distinctly averred objections we were at pains to recite in the "Statement of the Case," ante, were almost utterly vain; that the court, in response to a "test case" made by friendly accord and consent, has engaged its attention and high function in an immaterial, unimportant, chiefly idle performance, not necessary to the determination of the validity of the "road bond amendment," for that the facts making up the above-described status acquired by the "road bond amendment" have never been a matter or subject of doubt or debate; and hence, if the contention now under consideration was well founded and sound, this court could have discharged its whole duty by simply responding to the appeal that "it is too late, under those uncontested circumstances, to invoke the judicial function of deciding whether the 'road bond amendment' was submitted to the electorate in conformity to the Constitution," the electorate having voted thereon and favorably thereto on February 16, 1920. This court is not responsible in the slightest degree for the delay, if such there has been, in submitting the matter to its determination nor is it accountable at all for any consequences or action that intervened or have interposed since the adjournment of the Legislature of 1919. That this cause was brought "to test out" the validity of the "road bond amendment" was both desirable and necessary in view of the object proposed. As its name shows, the "road bond amendment" was designed to authorize the issuance of bonds and their sale to investors in such securities. To induce investors to *Page 400 buy bonds, it is, of course, essential that their validity shall be beyond question, or that doubts affecting their validity should be removed or composed, since no investor will buy clouded securities; and we apprehend no investor in bonds issued by a state would be favorably inclined to purchase if the highest court of the state offering its bonds on the market was found to be hesitant, for whatever supposed reason or inducement, in maintaining and vindicating the mandates of the Constitution of that state.
Now, as to the merits of the contention last stated: There are decisions declaring that time and action, under Constitutions asserted to have been irregularly or illegally promulgated, preclude such belated judicial inquiry into their validity. The cases of Taylor v. Virginia, 101 Va. 829,44 S.E. 754, Brittle v. People, 2 Neb. 198, Miller v. Johnson, 92 Ky. 589,18 S.W. 522, 15 L.R.A. 524, Nevada ex rel. Torryson v. Gray, 21 Nev. 378, 32 P. 190, 19 L.R.A. 134, and Secombe v. Kettelson, 29 Minn. 560, 12 N.W. 519, are cited to support this contention. The cases from Virginia and Kentucky, ante, concerned attacks upon the Constitutions as a whole; but, as if to guard its effect from misleading precedent in that state, the Kentucky court declared in Miller v. Johnson, supra, with respect to the amendment of the Constitution, that if the Constitution "provided how its" amendment was to be effected, "unless the [that] manner be followed, the judiciary, as the interpreter of that Constitution, will declare the amendment invalid. Koehler v. Hill, 60 Iowa, 543; State v. Tufly, 19 Nev. 391 " — both of which decisions quoted and applied the doctrine of Collier v. Frierson, 24 Ala. 100, which is reproduced in our original opinion. The Brittle and Secombe Cases involved considerations in which the admission into the Union of the states of Nebraska and Minnesota and acts of Congress relating thereto and subsequent approval were important factors in the conclusions there prevailing. None of these four decisions are relevant in fact, or through constitutional principle to the question presented and decided on this appeal. The Torryson Case, supra, invoked the court's interpretation of the requirement for the undefined "publication" of proposed amendments, and, being open to construction, not plain and unambiguous, the court gave effect to contemporaneous construction. It sheds no light here.
The theory that a favorable vote by the electorate, however unanimous, on a proposal to amend a Constitution, may cure, render innocuous, all or any antecedent failures to observe commands of that Constitution in respect of the formulation or submission of proposed amendments thereto, does not prevail in Alabama, where the doctrine of the stated theory was denied, in obvious effect, by the pronouncement 60 years ago of broad, wholesome constitutional principles in Collier v. Frierson, supra, as quoted in the original opinion, ante. The people themselves are bound by the Constitution; and, being so bound, are powerless, whatever their numbers, to change or thwart its mandates, except through the peaceful means of a constitutional convention, or of amendment according to the mode therein prescribed, or through the exertion of the original right of revolution. "The Constitution may be set aside by revolution, but it can only be amended in the way it provides," said Hobson, C. J., in McCreary v. Speer, 156 Ky. 783, 791,162 S.W. 99, 103.
We come now to the pith of the arguments addressed to and bearing upon the soundness of the adjudication in the original opinion, that the provisions of section 284 of the Constitution, providing that "the Legislature shall order an election by the qualified electors of the state upon such proposed amendments, 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 appointed by the Legislature, not less than three months after the final adjournment of the session of the Legislature at which the amendments were proposed," imposed upon the Legislature as an entity, not in its law-making capacity, the nondelegable duty to fix the time for the election there contemplated. Instead of fixing the time as the Constitution required, the Legislature expressly, in section 4 (Gen. Acts 1919, p. 790), undertook to delegate that duty and its performance to the official, the Governor, and so without any limit or direction other than may be implied from the fact that the Constitution (section 284) forbade the holding of an election on a proposed amendment within three months of that Legislature's adjournment. So far as the there manifested will of the Legislature was concerned, the present Governor might have set the election at any date during his term of office, which expires in 1923, no power anywhere residing to control that official's discretion, if it warrantedly reposed in that official.
The question thus made and the action contemplated was and is important in the highest degree, unless all conservative and preservative considerations that written Constitutions have developed in this republic are disregarded. It is not a technical question; it is a constitutional question. Even the layman would so understand it, if he would give attention to the nature, purpose, character, and supremacy of the organic law under which he lives, under which he holds — in confident reliance upon the preservation of all provisions of the Constitution — the vested, unimpairable interests of life, liberty, and *Page 401 property. To preserve it against violation; to detect its infringement; to discover the "sappers and miners" of the authority of any provision in it; to play the searchlight of scrutiny upon the so-called "liberal" constructionist, who would find an excuse to escape the effects of its mandates, prohibitions, or limitations by recourse to construction when its terms and intent are plain and unambiguous — these are among the primary duties of citizens wisely jealous of the preservation of the Constitution. Able as are the arguments presented against the stated ruling of this court, we find in them no sound contestation of these primary premises of the conclusion prevailing, viz. that the power to propose amendments to the Constitution itself is a special power, not inherent in the Legislature, to be exercised in strict conformity to the mode and the manner provided by article 18 of the Constitution. Collier v. Frierson, 24 Ala. 100; 12 C. J. pp. 687, 689.
Quite to the contrary of a contestation of the stated premises, the brief (page 10) for appellee in support of the application for rehearing expressly concedes that, if the provisions of section 284, relating to the appointment by the Legislature of the date or time for election on proposed amendments to the Constitution, are not referable to action by the Legislature in its capacity of lawmaker — as was decided in the original opinion ante — the argument prevailing with the court "is conclusive"; and again at page 16 the brief for appellee conceded that, if the power to appoint the time for the election on proposed amendments is reposed in the Legislature as an entity, not in its capacity as law-maker, "the conclusion" prevailing "necessarily follows." In the brief for rehearing of Mr. Stringfellow "for interested parties," it is also frankly conceded that —
"If the ordering of the election upon a proposed amendment to the Constitution is not committed to the Legislature in its law-making capacity, the writer agrees that such power of delegation does not exist."
So, in view of the eminence and great ability of the counsel who have scrutinized the bases — in logic, fact and law — for the conclusion prevailing on original consideration and stated in that opinion, this court cannot be mistaken in assuming that the question, the controlling inquiry, projected and pressed on this application for rehearing, is one of construction, only, of the before-quoted provisions of section 284 of the Constitution and those bearing upon or related to the particular character, quality and dignity of the power of appointing the time for the holding of an election on a proposed amendment to the Constitution. Such was the real crux of the inquiry considered and decided in the original opinion; but the arguments project and define this distinct, controlling question much more clearly than did the arguments, oral and in brief, on original submission. The present review and reconsideration is thus reduced in scope and subject-matter to the point of an "irreducible minimum." The proposition earnestly urged is that the function and service of the Legislature in performance of its duty under article 18 of the Constitution, in proposing and submitting amendments to the Constitution, is divisible into two distinctive processes or actions, in the order to be stated, viz. formulating, upon constitutionally attained agreement of the two houses, a proposed amendment to the Constitution, and, this being done (permissibly concurrently) as the necessary, natural precursor of and predicate for the other process, to wit, that of ordering the election, including a valid provision for the time it shall be held.
Upon this premise it is insisted that the provisions respecting the election confer this power upon the Legislature in its lawmaking capacity not as an entity, and therefore other provisions of the Constitution governing law-making come into operation and deserve observance in the process of completely ordering the election, including the time for holding it, and, being but an act of law-making, no invalidity would result from delegating to the Governor the discretion to fix the time of the election, a committal of discretion long recognized in the statutes of this state with respect to elections. This practice is invoked in the aid of the view urged for appellee. It is referable to the rule recognizing the force of contemporaneous construction in those cases only where the subject of consideration is open to construction — where the provision is not plain and unambiguous. In the original opinion it was pronounced, on abundant, unquestionable authority, in this court and elsewhere, that contemporaneous construction or practices illustrative of an interpretation otherwise than according to the plain and unambiguous intent of the terms employed in the Constitution cannot be consulted or heeded, to the end that the plain, unambiguous provisions of the organic law might be deflected from their intended and avowed effects.
In addition to these considerations, recourse to contemporaneous construction or governmental practices with respect to elections in this state is utterly impossible here, for the obvious reason that the provisions of article 18, touching the matter of elections on proposed amendments to the Constitution, are new to the present Constitution of 1901, as a comparison of the preceding organic laws of the state readily discloses. Even if the plain intent of this feature of section 284 could be regarded as changed or modified (in effect amended) by the course of governmental agencies in pursuing another method *Page 402 in the premises, no semblance of such practice appears to exist. Surely a few sporadic offenses against an unambiguous constitutional mandate will not suffice to establish the basis for a subversion of its terms. Indeed, the same Legislature submitting the "road bond amendment" submitted the "increased interest amendment," described in paragraph 6 of the bill filed in this cause, in accordance, in this regard, with the requirements of section 284; that is to say, the Legislature itself fixed the date for the special election on that proposed amendment. Confining the inquiry projected by the arguments for rehearing to the scope and realm to which the language of the Constitution and all juristic considerations that contribute to sound constitutional exposition restrict it, the question's solution cannot find just aid in collateral incidents, practices under differently phrased Constitutions or in the generalizations of great writers or courts that had not before them Alabama's organic law.
Recurring to the particular contention for the divisibility of the function of proposing and of submitting amendments to our Constitution: The analysis proposed in the arguments is a striking illustration of the well-known ability of counsel. More; it is pleasing to contemplate as the performance of lawyers of highest skill. Nevertheless, it is not sound. Viewed as the work of a surgeon, it would separate the heart from the body, leaving the body without the impulse of life. The heart of the simple, complete, separately provided, distinct system for amending the Constitution (Jones v. McDade, supra; Commonwealth v. Griest, 196 Pa. 396, 46 A. 505, 50 L.R.A. 568, 572, among others) is that which alone can infuse life into that which is lifeless, viz. a favorable election by the people on the amendment proposed. The body to become thereupon vital is the proposed amendment. The electoral function is not the body, but the heart that vitalizes the body. The argument proceeds in the reverse order of the factors to which it must refer. It unjustifiably exalts the mere order in which these two acts may be performed over the constitutional design and composite effect to which that action can alone relate. The design of article 18 is an entire scheme. To propose an amendment without providing for the election would be as much a folly as providing for an election on an amendment not proposed. The plan established by article 18 is the only, the exclusive, plan for amendment. In the opening sentence of this distinct article it is provided that —
"Amendments may be proposed to this Constitution by the Legislature in the manner following. * * *"
The italicized words are definitive and restrictive. They, too, are new to the present Constitution. No other manner than that thereinafter, in article 18 plainly provided, can be employed. The generally approved doctrine of Collier v. Frierson, 24 Ala. 100, concludes to the like effect, saying:
"Every requisition which is demanded by the instrument itself must be observed, and the omission of any one is fatal to the amendment."
The manner following concerns both the action to be taken and the body to take it. The action is (a) to formulate a proposed amendment, and, having done this, (b) to order an election thereon, and (c) fix the time it shall be held not less than three months after the final adjournment of that session. By what agency is this action to be taken? Section 284 designates the "Legislature" as the agency for taking the action defined. Obviously for this purpose there is reposed in the Legislature the active principle to exercise a special power. The Constitution devotes to its creation a distinctive place in arrangement. There was a separate committee of the convention of 1901 to frame and report on the "Mode of Amending the Constitution" — a committee different from the committee to consider and report on the legislative, the law-making, department. Now, in designating the agency to formulate and agree upon an amendment the Legislature is named. No one has yet contended that in formulating an amendment the Legislature is exercising its law-making power, elsewhere defined and regulated in the Constitution. It would be wholly irrational to do so. In the same section (284), in the same sentence, the writers of the Constitution used the identical word to designate what agency should order the election and fix the time it should be held, viz. the Legislature. If the Legislature as an entity, not in its law-making capacity, is the only agency that can formulate an amendment, how can it for a moment be thought, much less contended, that "Legislature" was intended to have any different effect or design when the ordering of the election and fixing the time it should be held was the purpose of the makers of the Constitution? If "Legislature" means the entity in one instance, it has the same meaning in the other; for there is not in article 18 of the Constitution or elsewhere therein the slightest intimation, structural or verbal, that a different signification was intended in one instance from that patently intended in the other.
There was no obstacle to the Constitution's designating the entity, the Legislature, as the distinctive actor in ordering an election on a proposed amendment and in fixing the time it should be held. The makers of the Constitution were free to repose and impose this power anywhere. They chose the "Legislature," naming the same agency that was designated *Page 403 to formulate an amendment; but the insistence is that the "Legislature" in another capacity, viz. that of law-making, was the Constitution's intent, and this insistence has led the proponents of this theory into a contention that to accept it would contradict and defeat express provisions of section 287, as is pointed out in the original opinion ante. Having taken this ground, inescapable logic required them to assert that every provision of the Constitution governing law-making is applicable to the process of ordering an election on a proposed amendment and fixing the time it should be held, and this to the extent of affirming that such legislative action should be presented to the Governor under the mandate of section 125, thereby subjecting the action in question to executive veto or amendment. The unsoundness of their major premise and the proposition they proposed to establish upon it is, to our minds, clearly demonstrated by the limits to which the logic of argumentation thus necessarily carried them; for, if providing for an election on a formulated, proposed amendment is simply a law, is the product of law-making, the Governor's right to participate in the process, as a limited, yet a very potential, part of the legislative department, is established. Nevertheless, to establish it is to ignore this plain language of section 287:
"No act or resolution of the Legislature passed in accordance with the provisions of this article, proposing amendments to this Constitution, or calling a convention for the purpose of altering or amending the Constitution of this state, shall be submitted for the approval of the Governor, but shall be valid without his approval."
And votes, orders or resolutions "amending this Constitution" are excepted, in section 125 of the Constitution, from presentation to or action by the Governor.
The Legislature may choose either an "act or resolution" through which to exercise the powers conferred by article 18 of the Constitution. Jones v. McDade, 200 Ala. 230, 233, 75 So. 988. The quoted provisions of section 287 mean what they plainly say, viz. that "no act or resolution" shall be submitted to the Governor's approval. The "act or resolution" in the convention's mind is expressly defined in the sentence, viz. the act or resolution passed in accordance with the provisions of this article, thereupon describing the article's substance and design as follows: "Proposing amendments to this Constitution or calling a convention for the purpose" of altering or amending the Constitution. "Proposing amendments to this Constitution" comprehends that completed process, viz. the submission to the electorate, at a designated time, of a formulated amendment to the organic law. The intent is the same in the specific exception written in section 125. The language of section 287 is the same in respect of proposing amendments as it is in respect of "calling a convention," submitting that issue to the ballot (section 286). Could it be soundly contended that the designation of the date that a proposed convention should assemble is mere law-making, and must, to be valid, be submitted to the approval of the Governor as other legislation is? The quoted terms of section 287, absolute, final, and prohibitory, forbid the submission to the Governor's approval of any "act or resolution" passed in accordance with the provisions of article 18; and, being so prohibited, it is impossible, without denying plain language its obvious effect, to refer the ordering of an election on a proposed amendment, or the fixing of the date it should be held, to the Legislature in its law-making capacity. If that dissevering view was taken, the process for amending the Constitution would be an anomalous hybrid, the executive being armed with the power of veto to hinder, delay, or defeat the ordering of the election and the fixing of a day therefor, if the executive was out of sympathy with the Legislature's will. If the Legislature embodied in one act both the proposed amendment and the provisions for the election, as it may do, then, as it is quite logically asserted, the executive would be further armed, through the veto power, to hinder, delay, or defeat the entire will of the Legislature, if the Governor did not share the legislative view. These and other readily conceivable anomalies would result from taking liberties with the unmistakable language of sections 284 and 287 of the Constitution.
It is insisted that, because no legislative or other regulations are provided in section 284 to govern or define the Legislature's action in respect of the election on a proposed amendment, it should be concluded that this action was designed to be subject to the Constitution's regulations for the making of laws. The Legislature's action in that regard is simply to fix the time the election shall occur. This it may do by either resolution or act, and a resolution is not a law under our system. Reynolds v. Blue, 47 Ala. 711, 713; 34 Cyc. pp. 1167, 1168. The suggestion that, unless subjected to legislative regulations in the Constitution, a minority of either house might provide for the election, is, we think, chimerical.
It is asserted in brief for appellee that authorities are abundant to the effect that providing for an election on a proposed amendment to a Constitution is but a matter of legislation, subject to constitutional regulations of that function. But two decisions are cited to the point on brief for appellee, viz. Hatch v. Stoneman, 66 Cal. 634, 6 P. 734, and Neisel v. Moran (Fla.) 85 So. 346. In the Neisel-Moran Case, supra, the Constitution itself fixed the "next general election of representatives" as the time *Page 404 for the electorate to vote on a proposed amendment. In Alabama's Constitution the Legislature is commanded to fix the time for the election. The Florida case is without any bearing upon the question here. The other decision (Hatch v. Stoneman) was predicated of the particular provision of the California Constitution (article 18, § 1), providing that the Legislature should submit a proposed amendment "in such manner, and at such time, and after such publication as it may be deemed expedient." The court there drew a distinction between the formulation of an amendment and provision for an election thereon, holding the latter action to be law-making only, and that presentation to the Governor was essential. The decision may be sound as an exposition of the Constitution there involved. Its doctrine did not find favor in Commonwealth v. Griest, 196 Pa. 396, 46 A. 505, 50 L.R.A. 574, 575. Suffice it to say, as did the court last cited, that the provisions of our Constitution, particularly those quoted from section 287, are materially different from those of California, and that that decision is valueless here.
Pertinent historical events forming the circumstances in the atmosphere of which the constitutional convention of 1901 wrought out the present organic law further emphasize the correctness of the conclusion of this court. On December 16, 1898, Gov. Joseph F. Johnston approved an act to provide for holding a convention to revise and amend the Constitution of this state, Gen. Acts 1898-99, pp. 90-97. For reasons entertained by the Governor, in May, 1899, he called the Legislature into special session to consider the repeal of the act submitting the call for a constitutional convention to the people of Alabama. Upon the assembling of the Legislature in special session, the Governor communicated thereto his official message. It is reproduced in the published acts of that session. It was a forceful presentation of the executive views. The message reflects the public excitement of the time, noting the impending mass meeting for that evening in the city of Montgomery, and that the United States senators and members of Congress representing Alabama were proclaimed as ready to participate in the effort "to instruct" the Assembly as to their duty to refuse to repeal the act calling the convention and submitting that issue to the ballot. The Governor's views prevailed in the Assembly. The act was repealed. Accompanying the Governor's message to the Legislature was a letter to the Governor from Hon. Robert C. Brickell, giving it as his opinion that the Assembly had the rightful power to repeal the act calling a constitutional convention; and, in the course of his letter, he advised that, as to the method of constitutional change by amendment proposed, the doctrine of strict observance of constitutional prescriptions, laid down in Collier v. Frierson, 24 Ala. 100, and in Jameson on Constitutional Conventions, § 574e, was essential. The General Assembly next elected, after the retirement of Gov. Johnston, passed the act approved December 11, 1900 (Gen. Acts 1900-01, pp. 224-234), again submitting the call for a constitutional convention to the electorate. The call was sustained. The convention met and wrote the present organic law. The memory and purposes, at least on one side, of the contest and conflict of 1899, found unmistakable expression in the Constitution. In section 286 the power to repeal an act submitting a call for a constitutional convention, after the session adopting the act had adjourned, is expressly inhibited, thus preventing a recurrence of the issue to which Judge Brickell contributed one view and other eminent men took the opposite view. The purpose to curtail the executive power and influence was manifested in the provisions of section 116, assuming to declare a Governor ineligible for election to the Senate of the United States during his term as Governor and for one year after the expiration of his term.
With this mere outline of the events of that day, just preceding the convention which wrote this Constitution, and the manifestation otherwise of the convention's purpose with respect to the officials, the Governors then and yet to come, it is altogether plain that section 287, in the particular quoted, was intended to exclude the Governors from all participation in the process of formulating proposed amendments and of appointing the time for election thereon, and also from all participation in respect of the calling of a convention and the submission of that issue to the ballot, except in the services to be rendered by the Governor after the authority and powers of the Legislature have been fully exercised in the mode prescribed in article 18. As was remarked by counsel on the argument, the official, the Governor, is the only officer or person to whom it is expressly forbidden to submit any act or resolution passed in virtue of the particular, special powers granted by article 18 of the Constitution, governing its amendment or change, and it is in plainest language the instrument so declares. To actually violate this unmistakable intent of the Constitution is a capital offense against its authority. It is not a misdemeanor. That powers of government shall be exercised only by those to whom the organic law allows or commits them is a fundamental principle, which no misguided ardor can obscure or ignore. This is a government of laws, not men. The departments of state are required to confine their actions and functions to their respective spheres. The Constitution neither contemplates nor permits the shirking or shifting of responsibilities or duties between departments *Page 405 of the state. Would even the careless or irresponsible assert that to ignore or violate the Constitution's commanded separation of the departments of state is a mere misdemeanor against the supreme authority of the organic law? To ignore or violate the present prohibition against executive participation is just as grave a disrespect to Constitution as to refuse obedience to the commands of separation of departments.
Reference is made to the general language to be found in Commonwealth v. Clark, 7 Watts S. (Pa.) 133. That case involved the application of provisions of the "schedule" to the Constitution of Pennsylvania, serving "uses" that were "temporary and auxiliary," and not the Constitution, itself, as appears from the facts in the report, as well as from the statement of Chief Justice Gibson, on page 133 of the report. The declaration of Judge Gibson is that constitutional provisions relating to the "time or manner of performing an act are * * * 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 conclusion to which this language would be carelessly subscribed is refuted by two potent factors, viz.: One is that the Constitution of Alabama (section 284, particularly) provides that its amendment can be effected "in the manner following," and then defines the exclusive manner and mode therefor (Collier v. Frierson, supra), thus answering the qualification stated by Judge Gibson in the quotation ante; and the other is the positive declaration of this court in Perry Co. v. Railroad, 58 Ala. 556, reproduced in the court's original opinion ante.
To this cause and the important questions it involves full, careful, responsible consideration has been given. The reconsideration has only served to confirm further the conviction entertained by the judges through whom the court has spoken, in declaring the "road bond amendment" ineffectual. The Constitution has been observed; its plain mandate enforced; its authority vindicated. That disappointment attends upon this judgment is, of course, natural. This disappointment will be temporary, if the people of Alabama desire to amend the Constitution according to the general design of the "road bond amendment." Delay in road construction in this state is far better, far less hurtful, than constitutional destruction.
The application for rehearing is overruled.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.
SOMERVILLE, GARDNER, and THOMAS, JJ., dissent.