Opinion of the Justices ( 1995 )

BUTTS, Justice

(dissenting).

I respectfully dissent from the majority’s advisory opinion, because I believe that House Bill 728 (“H. 728”) is in conflict with Constitutional Amendment No. 513, which amended § 98 of the Alabama Constitution of 1901. Amendment 513 states:

“The legislature shall not retire any officer cm pay, or part pay, or make any grant to such retiring officer; however, the legislature shall have the authority to provide that superintendents of education shall be eligible to participate in the Teachers’ Retirement System of Alabama as the legislature may see fit.”

(Emphasis added.) The language emphasized is the original language of § 98 of the Alabama Constitution of 1901; Amendment No. 513 added the other language.

In Zeigler v. Baker, 344 So.2d 761 (Ala.1977), this Court examined § 98 in relation to an Act of the legislature creating a system to pay retirement benefits to any former Governors of the State of Alabama who sustain total physical or mental disability during their terms of office. This Court ruled that § 98 was “meant to prohibit that body [the legislature] from granting a public officer, including of course, a governor, retirement funds upon his becoming eligible after leaving office.” Zeigler, 344 So.2d at 767.

It is plain that H. 728, seeking to create the positions of Honorary Representative, Honorary Senator, and Honorary Lieutenant Governor, is an attempt to create a retirement system for those former state officers. Although the legislature may term such benefits “expense allowances” and although, under Amendment No. 57 to the Alabama Constitution of 1901, the legislature has the plenary power to set its expense allowance at a fixed monthly sum, see Van Hart v. deGraffenried, 388 So.2d 1196 (Ala.1980), I believe that such fixed monthly payments to former state officers are equivalent to the retirement payments expressly forbidden by Amendment 513.

The Constitution of the State of Alabama simply does not allow the legislature to create a retirement system for its former members and for former lieutenant governors, without a referendum vote of the people amending the constitution to expressly authorize such payments. The law requires and common sense dictates that the citizens of Alabama, who would be called upon to pay for this retirement system, must first decide with their votes whether they are willing to do so.