Opinion of the Justices , 384 So. 2d 1054 ( 1980 )

Members of the House of Representatives

State Capitol

Montgomery, Alabama

Dear Sirs and Mesdames:

We acknowledge receipt of House Resolution No. 203 requesting an advisory opinion on the constitutionality of House Bill No. 931. Resolution No. 203 reads:

HOUSE RESOLUTION NO. 203

WHEREAS, Section 110 of the Constitution of Alabama, as amended by Amendment No. 375 to the said Constitution, provides in part as follows:

“ . . . the Legislature may . enact and change from time to time a general schedule of not more than eight classes of municipalities based on population according to any designated federal decennial census, and [after the enactment of such a general schedule,] general laws for any purpose may thereafter be enacted for any such class .

“No general law which at the time of its enactment applies to only one municipality of the state shall be enacted . unless notice of the intention to apply therefore shall have been given and shown as provided in Section 106 of this Constitution for special, private or local laws; provided, that such notice shall not be deemed to constitute such law a local law” ;

and

WHEREAS, acting pursuant to the quoted provisions of the said Section 110, as so amended, the Legislature did enact, at its 1979 Regular Session, Act No. 79-263 which established eight classes of municipalities based on population according to the 1970 federal decennial census; and

WHEREAS, one of the eight classes of municipalities so established by the said Act No. 79-263 consists of municipalities having a population of 300,000 or more, according to the said 1970 federal decennial census; and

WHEREAS, it appears from the said 1970 federal decennial census that the City of Birmingham is the only municipality in Class 1 as established by the said Act No. 79-263; and

WHEREAS, the Journal of the House of Representatives of the current session of the Legislature shows

(a) the introduction of House Bill No. 931, (i) which by its terms relates to any municipality in Class 1 of the eight classes of municipalities established as aforesaid by the said Act No. 79-263, and (ii) which is, accordingly a general law under the provisions of the said Section 110, as so amended, and

(b) certification as to publication of the said House Bill No. 931 pursuant to the publication requirements of Section 106 of the Constitution with respect to a local law;

WHEREAS, important constitutional questions affecting the entire State of Alabama are presented by the said House Bill No. 931 [a copy of that bill was attached to HR 203, but is omitted from this opinion], since its validity involves the validity of Amendment No. 375 to Section 110 of the Alabama Constitution;

NOW, THEREFORE, BE IT RESOLVED by the House of Representatives of Alabama that the Justices of the Supreme Court of Alabama are hereby respectfully requested to render their opinion, as provided by Section 12-2-10 of the Code of Alabama of 1975, on the following important constitutional questions:

(1)Was there a failure on the part of the Legislature of Alabama to direct (either in Act No. 11, 1978 Second Special Session, the act that proposed the said Constitutional Amendment No. 375, or by other means) the manner in which notice of the election on said Constitutional Amendment be published, as contemplated by the provision of Section 284 of the Constitution, as amended, that such notice “be published in every county in such manner as the Legislature shall direct”?

(2) If question (1) is answered in the affirmative, is Constitutional Amendment No. 375 invalid because not adopted in accordance with the quoted provision of the said Section 284, as amended?

(3) If question (2) is answered in the affirmative and if, accordingly, Section 110 of the Alabama Constitution has not been amended and now exists in its original form, is House No. 931 a proposed local law, within the meaning of the said Section 110?

(4) If both questions (2) and (3) are answered in the affirmative and if, accordingly, House Bill No. 931 is a proposed local law, within the meaning of the said Section 110, is House Bill No. 931 invalid under the provisions of Section 104(18) of the Alabama Constitution?

The first three questions posed would require the members of this Court to address the issue of whether Amendment No. 375 to the Constitution of 1901 was constitutionally enacted under Section 284 of the Constitution. We must respectfully decline to answer questions (1) through (3) because they do not concern the constitutionality of proposed legislation. See Opinion of the Justices, 356 So.2d 172 (Ala.1978). Code 1975, § 12-2-10, which is the authority to issue advisory opinions, does not authorize opinions on legislation already enacted by the Legislature. Opinion of the Justices, 342 So.2d 916 (Ala.1977). The constitutionality of legislation already passed should instead be tested by adversary proceedings. See Opinion of the Justices, 291 Ala. 581, 285 So.2d 87 (1973).

Because we are unable to respond to questions (1), (2) and (3), we must necessarily decline to answer question (4), since any answer to that question is contingent upon affirmative responses to the first three questions.

For the foregoing reasons, we respectfully decline to respond to the advisory opinion request.

Respectfully submitted,

C. C. Torbert, Jr. Chief Justice Hugh Maddox James H. Faulkner Reneau P. Almon Janie L. Shores T. Eric Embry Sam A. Beatty Justices