In Re Opinion of the Justices , 248 Ala. 590 ( 1947 )

Response to Questions propounded by House of Representatives.

Questions propounded by the House of Representatives to the Justices of the Supreme Court under Code 1940, Title 13, § 34.

Questions answered.

House Resolution No. 9 by Snodgrass

To request an advisory opinion of the Supreme Court of Alabama relative to the constitutionality of a resolution pending before the Legislature which is a proposal to create legislative interim committees.

Whereas The Legislature of Alabama has pending before it at its organizational session a proposal to create by joint resolution six interim committees of the Legislature, and

Whereas an amendment to the Constitution of Alabama, ratified November 5, 1946, provides:

"The Legislature shall convene on the second Tuesday in January next succeeding their election and shall remain in session for not longer than ten consecutive calendar days. No business can be transacted at such sessions except the organization of the Legislature, the election of officers, the appointment of standing committees of the Senate and the House of Representatives for the ensuing four years, which election and appointment may, however, also be made at such other times as may be necessary, the opening and publication of the returns and the ascertainment and declaration of the results of the election for Governor, Lieutenant-Governor, Attorney-General, State Auditor, Secretary of State, State Treasurer, Superintendent of Education, and Commissioner of Agriculture and Industries, the election of such officers in the event of a tie vote, the determination of contested elections for such offices, the judging of the election returns and qualification of the members of the Legislature and the inauguration of the Governor and the other elected State officers whose terms of office are concurrent with that of the Governor."

And Whereas Section 34 of Title 13 of the 1940 Code provides that either house of the Legislature may obtain the written opinion of the Justices of the Supreme Court of Alabama on any important constitutional question, therefore Be It Resolved by the House of Representatives:

1. The Justices of the Supreme Court are requested to give their written opinion on the following questions:

A.) Is the Legislature's power of creating legislative committees restricted in any manner by the provisions of the constitutional amendment relating to sessions of the Legislature that was ratified November 5, 1946.

B.) Can the Legislature legally provide for the creation of legislative interim committees by a joint resolution passed at its organizational session.

The House Joint Resolution pending before the Legislature is as follows:

H.J.R.-8 __________ By Mr. Snodgrass

Be It Resolved by the House of Representatives, the Senate Concurring:

1. That there are hereby created an Interim Committee on Finance and Taxation, an Interim Committee on Education, an Interim Committee on Highways, an Interim Committee on Health and Public Welfare, an Interim Committee on Agriculture, and an Interim Committee on Judiciary to serve during the interim between this organizational session of the Legislature and the Regular Session of the Legislature to be held in May, 1947. The members of each Interim Committee shall consist of three members from the Senate to be appointed by the presiding officer of the Senate and five members from the House of Representatives to be appointed by the Speaker of the House. The Lieutenant Governor of Alabama and the Speaker of the House of Representatives shall be ex-officio members of each committee and shall receive the compensation of a member of a committee. When the members of said interim committees shall have been named as herein provided, the members of each of said committees shall select a chairman and vice-chairman thereof. The members of said committees shall give all the time necessary to carrying out the duties of the committees herein provided for. Each interim committee hereby created shall commence the performance of its duties as soon after this organizational session of the Legislature as may be practicable.

2. The Committee on Finance and Taxation is authorized and it shall be its duty to make a careful study of the financial conditions of the State and the laws having to do with taxation. The Committee on Education is authorized and it shall be its duty to make a careful and proper study of the educational laws and needs of Alabama. The Committee on Highways is authorized and it shall be its duty to make a careful and proper study of the highway laws of the State and the needs of Alabama in connection with the highways. The Committee on Judiciary is authorized and it shall be its duty to make a careful and proper study of the judicial system, laws and rules of the courts of the State, and other needs of Alabama in this regard. The Committee on Health and Public Welfare is authorized and it shall be its duty to make a proper and careful study of the health laws of the State and the needs of Alabama and make a careful and proper study of the welfare laws and needs of Alabama. The Committee on Agriculture is authorized and it shall be its duty to make a careful and proper study of the agricultural laws and needs of Alabama. Each committee shall report its findings and recommendations to the Legislature when it reconvenes in May, 1947.

3. The Chairman of each committee, created under this joint resolution, shall be empowered to employ one clerk who shall serve the committee presided over by such chairman, and such clerk shall be paid as provided by Section 13, Title 32, of Code of 1940.

4. The compensation and expenses of the members of said committees shall be the compensation and expenses now provided by law under Section 13, Title 32, Code of 1940. The committees hereby created may remain in session as long as necessary to perform their duties, but, in no event, shall they receive compensation for more than thirty days. The members of said committees shall also receive the same mileage they receive while attending the Legislature, but said members of the committee shall not receive mileage more than once. The chairman of each of said committees shall certify to the Comptroller what is due each member or clerk, who must draw his warrant therefor on the State Treasurer.

To the House of Representatives,

State Capitol.

Gentlemen:

We are in receipt of your inquiry upon the constitutionality of a joint resolution, now pending in the House of Representatives, concerning the appointment of interim committees during the present ten-day session, which convened pursuant to the constitutional amendment adopted November 5, 1946, and which has been duly proclaimed a part of the Constitution of the State of Alabama. For the Act proposing the amendment — General Acts, Regular Session 1945, pp. 601-604.

This constitutional amendment made very substantial change in the amendment adopted pursuant to the proposed Act of March 29, 1939, — General Acts, Special Session, 1939, p. 11. But there was no change in that part of the 1939 amendment, so far as the ten-day session is concerned. It was readopted word for word.

In considering the power of the Legislature to appoint interim committees it should be borne in mind that legislative power is not derived either from State or Federal Constitution. These instruments are only limitations upon the power. Apart from limitations imposed by these fundamental charters of government, the power of the Legislature has no bounds and is as plenary as that of the British Parliament. Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So.2d 810. The sole question, therefore, presented by your inquiry is whether or not that part of the constitutional amendment having reference to the ten-day session, which is reproduced in your inquiry accompanying this advisory opinion, contains such language as must be construed to restrict the legislation in the manner here involved.

True, the language is that "No business can be transacted at such sessions except the organization of the Legislature," and proceeds to detail some of the matters so authorized by way of exception. Among these mentioned matters is the appointment of standing committees of the Senate and of the House for the ensuing four years. It may be argued that the naming of standing committees in this exception should be construed as excluding any other character of committees, that is, interim committees as here being considered. We are persuaded, however, that this view is too narrow. This constitutional amendment clearly embraced other matters than those named in these exceptions. For illustration, surely during the ten-day session, and as a part of the organization, the Legislature could select pages, as well as doorkeepers; and no one could doubt for a moment the power of the Legislature also at this session to select clerks of committees. These are not matters mentioned in the amendment and, yet, very clearly are a part of the organization and do not constitute business in the meaning of this constitutional provision. This but serves to illustrate that the rule of "Express Mention and Implied Exclusion," referred to in the authorities is not a rigid rule of universal application, and should never be applied to obscure the meaning or thwart the purpose of a constitutional provision. 12 C.J. 707; 16 C.J.S. Constitutional Law, § 21. And, as observed by the Florida court in State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 So. 929, the rule should be applied with caution to the provisions of an organic law relating to the legislative department.

So, therefore, the mere fact that standing committees are so named should not, in our opinion, be given controlling effect. Of course, the Legislature has power to appoint recess committees at either special or regular session, 59 C.J. p. 95; and was recognized by the lawmaking body in the passage of what was Section 1523, Code of 1923, providing for the pay of recess committee members. Said Section 1523, Code of 1923, was significantly changed by providing pay for interim committees instead of recess committees, and further providing for their appointment by joint resolution, or by act of the two houses, as the Legislature deemed proper. Title 32, Section 13, Code 1940. And, the Legislature has also made express provision for the appropriation of funds for the expense of said legislative interim committees as may be created by said lawmaking body. Title 32, Section 14, Code of 1940.

As we have observed, the Legislature has plenary power except when limited by the Federal or State Constitution. So far, therefore, as this constitutional amendment seeks to restrict the Legislature in the appointment of interim committees it should be strictly construed. State v. Clements, 220 Ala. 515,126 So. 162. The power to legislate necessarily presupposes necessity for investigation by members of each House. This question was fully discussed in McGrain v. Daugherty,273 U.S. 135, 47 S.Ct. 319, 71 L.Ed. 580, 50 A.L.R. 1, where the court held the practice of appointing legislative committees was a necessary power to the end that the functioning of lawmaking may be effectively exercised. To like effect see 49 Am.Jur. § 40, pp. 257, 258; In re Southard, 13 Cal.2d 497, 90 P.2d 308.

Speaking of the organization of corporations generally, the word "organization" has a well-understood meaning, that is, not only the election of officers, the subscription to the capital stock, the adoption of by-laws, but, also, such other steps as are necessary to endow the legal entity with the capacity to transact the legitimate business for which it was created. 30 Words Phrases, Perm.Ed., p. 284. So, we are persuaded here that the word "organization" should properly be interpreted as giving to the Legislature the power to appoint these committees which it deems necessary for the purpose of gathering information for the business of the Legislature when it reconvenes in its regular May session. Organization is in fact preparation for the transaction of business, and the appointment of these committees is an appropriate part of such preparation.

Perhaps the interim between the ten-day session and the regular session in May was for the purpose in one respect of giving to the Governor an opportunity to formulate his plans and recommendations, and making a study of the State's needs. But this same reasoning is applicable to the Legislature as well. The members of the lawmaking body should also have an opportunity to make investigation and to properly inform themselves upon the needs of the State. An interim committee does not legislate, it merely makes inquiry and obtains data so that it may properly report to the regular session their findings. This, in our opinion, is not doing business within the meaning of the constitutional provision above noted, but is merely in preparation to that end when the Legislature reconvenes in its regular session.

We are not persuaded, therefore, upon consideration of these matters and a careful reading of this constitutional amendment, that the appointment of interim committees would constitute a doing of business which is prohibited by said amendment.

We, therefore, answer your inquiry in the affirmative, that is, to the effect that the Legislature has the power to appoint interim committees as suggested in the resolution now pending.

Respectfully submitted,

GARDNER, Chief Justice,

FOSTER,

LIVINGSTON,

STAKELY, Associate Justices.

It is well settled in Alabama that the Legislature in the absence of constitutional restrictions has plenary power to appoint interim committees or to do anything essential in due organization and preparation for transacting legislative business, and that constitutional restrictions against such power are to be strictly construed. The amendment under consideration does not expressly prohibit the appointment of interim committees and to deny it the right is to write into the Constitution such restrictions by implication. This is contrary to the rule of strict construction. For this reason we concur in the result of the majority of the opinion but not all that is said therein.

BROWN,

SIMPSON, Associate Justices.