Opinion of the Justices , 244 Ala. 386 ( 1943 )

Response to questions propounded by the Senate.

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

Questions answered.

Senate Resolution No. 29 By Messrs. Kilborn, Madison and St. John (Cullman) "Whereas, There is now pending in the Legislature of the State of Alabama House Bill 66, which provides for the creation of a War Emergency Council and the appropriation of the surplus over and above $750,000.00 in the State Treasury to the credit of the General Fund to a War Emergency Fund created by said Act, and further providing for the allocation of said fund by said War Emergency Council, of which the Governor is made chairman, to any department, institution, or agency, for which said funds are authorized to be expended when and in such a manner as said Council deems an emergency to necessitate, and the constitutionality of the Bill should be beyond question, therefore,

"Be It Resolved, By the Senate of Alabama, that the Justices of the Supreme Court of Alabama, or a majority of them, are hereby requested to render to this Body their written opinion, as provided by section 34, Title 13, of the 1940 Code of Alabama, as to whether said Act, a copy of which is hereto attached, violates any section of the constitution of the State of Alabama, and particularly sections 43 and 72 of said constitution."

The above Senate Resolution was adopted by the Senate of Alabama on the Twenty-fourth Day, May 27, 1943.

(Signed) J. E. Speight, Secretary of Senate

Senate Resolution No. 38, adopted June 1, 1943, also submitted to the Justices, is in the identical language of Resolution No. 29, except that the particular sections of the Constitution specified in the inquiry are "Sections 43, 72, 59, 280, 42 and 71", instead of "Sections 43 and 72" of the Constitution as in Resolution No. 29, above.

The pending act referred to in the resolution is as follows:

A Bill To Be Entitled An Act To create and establish a War Emergency Council and a fund therefor; to provide for its organization and to define its powers and duties; to fix the compensation of its members and to define their powers, authority, and duties; to appropriate funds for the operation and use of said council.

Be It Enacted by the Legislature of Alabama:

Section 1. There is hereby created a War Emergency Council, to consist of the Governor, as Chairman, and eight members of the Legislature of Alabama. Four of the legislative members shall be elected from the Senate and four from the House of Representatives. No two of the members from the Senate shall be elected from the same congressional district and no two members from the House of Representatives shall be elected from the same congressional district. The members so elected shall serve until their successors are elected at the next regular session of the Legislature, following the regular session in which they were elected. In the event of the death or resignation of any member elected from the Senate or the House of Representatives, the Governor shall immediately notify the Lieutenant-Governor if the member was elected from the Senate, and the Speaker of the House if the member was elected from the House of Representatives. Thereupon the Lieutenant-Governor shall appoint a member from the Senate in the event said member was from the Senate, and the Speaker of the House of Representatives shall appoint a member from the House of Representatives in the event said member was from that body, the member so appointed to serve until his successor is elected as above provided.

Section 2. Election. The Senate of Alabama and the House of Representatives of Alabama shall each adopt its own rules as to the method or manner of electing its members of the War Emergency Council.

Section 3. Meetings. The Council shall meet from time to time on call of the Governor. At least one day's notice of the time and place of meeting shall be given by the Governor.

Section 4. Quorum. A majority of the members of the Council shall constitute a quorum for the purpose of transacting any business or the performance of any duties herein authorized.

Section 5. Powers and Duties. It shall be the duty of the Governor to call a meeting of the War Emergency Council in the event of an emergency or when he deems it necessary or proper to call a meeting to consider the advisability of allocating any part of the funds appropriated to the Council for the purpose of supplementing the appropriation made by the Legislature to any department, institution, or agency of the State, or of meeting any emergency that may hereafter arise in any department, institution, or agency for which State funds are authorized to be expended. At any meeting called by the Governor, he shall submit to the Council in writing his recommendation for the allocation of any part of the funds appropriated to the Council. The Council shall consider said recommendation and make such investigations as it deems necessary or proper. In the event a majority of the Council shall approve the Governor's recommendation, it shall by proper resolution adopt said recommendation and order the transfer, use or expenditure of the amount so recommended; and the State Comptroller shall be authorized, upon receipt of a certified copy of said resolution signed by the Governor and the secretary of the Council, to transfer to the proper department, institution, agency, or official, the fund authorized to be allocated. Any member shall be authorized at any meeting of the Council to propose in writing a different allocation or a different amount to be allocated to any department, institution, or agency of the State of Alabama, or to meet any emergency hereinabove referred to. In the event a majority of the Council, including the Governor, approves by proper resolution the proposed allocation of any part of said fund, the allocation of the same shall be authorized as above provided. In the event the Governor disapproves any proposal made by a member of the Council, no part of the fund appropriated shall be allocated.

Section 6. For What Purpose the Fund May be Used. Any funds appropriated by the Legislature to the War Emergency Council may be allocated by the Council to supplement any appropriation made by said Legislature to any department, institution, or agency of the State of Alabama to meet any emergency that may hereafter arise in any such department, institution, or agency or that may be necessary or proper to allocate in order that any such department, institution, or agency may properly function or to meet any emergency that may hereafter arise for which State funds are authorized to be expended.

Section 7. Secretary. The Budget Officer shall be an ex officio member and shall act as secretary of the Council, but shall not be entitled to vote.

Section 8. Minutes of Meeting. Full and complete minutes in writing of all proceedings of the War Emergency Council shall be kept by the secretary and every action taken shall be by written resolution. The secretary shall record the vote of each member of the Council. The secretary shall furnish to the proper officials a certified copy of any resolution passed by the Council, which copy shall be signed by the secretary and the Governor.

Section 9. Compensation of Members. Each member of the Council except the Governor shall be entitled to compensation at the rate of ten dollars ($10.00) per day for each day the Council is in session, but not to exceed $200.00 in any Calendar year, and shall also be entitled to mileage from his place of residence to each session of the Council and return over the usual route. A session shall be defined as any meeting of the Council wherein there is no adjournment in excess of three days.

Section 10. Appropriation to War Emergency Fund. There is hereby appropriated to the War Emergency Fund any surplus over and above $750,000.00 in the State treasury to the credit of the General Fund, after providing for the payment of all appropriations, now or hereafter made payable from that fund, for each of the fiscal years ending September 30, 1943, and September 30, 1944, and such surplus shall be transferred at the end of each said fiscal years to the War Emergency Fund to be expended by the War Emergency Council in accordance with the provisions of this act. The comptroller is hereby authorized and required at the end of each of said fiscal years to draw a warrant for the amount of the surplus over and above $750,000.00, as provided herein, payable to the State Treasurer to be covered by him into the State treasury to the credit of the War Emergency Fund. All other amounts which may be appropriated to the War Emergency Council shall be properly designated by the State Treasurer and credited to the War Emergency Fund.

Section 11. This act shall become effective upon its passage and approval by the Governor.

Section 12. This Act shall expire on May 10, 1945, and any amount remaining in said War Emergency Fund at that time shall revert to the General Fund of the State Treasury.

SENATE

5-27 1943 ------------ ADOPTED __________ Senate Yeas _________ Nays _________ 5-27 1943

J. E. SPEIGHT, RD. 1 RFD Rules Secretary --------

To the Senate of Alabama State Capitol Montgomery, Alabama

Gentlemen:

Responding to your inquiry of May 26th, relative to the establishment of a War Emergency Council, under the provisions of House Bill No 66, we submit the following:

We duly appreciate the constitutional requirement that all legislation is vested in the Legislature by sections 43 and 44 of the Constitution, and that this power cannot be delegated; also that no money shall be paid out of the State treasury except by an appropriation made by a law enacted by the Legislature, — § 72, Constitution; and this power cannot be delegated.

But it is consistent with both those requirements that the Legislature can appropriate an ascertainable sum of money to be paid under the direction of a State agency, for such public benefits as may be directed by such agency, in conformity to standards or definitions of legislative policy adopted and declared by the Legislature. Hawkins v. State Board of Adjustment, 242 Ala. 547, 7 So.2d 775; State v. Inman, 239 Ala. 348,195 So. 448; Dunn Construction Co. v. State Board,234 Ala. 372, 175 So. 383; Calhoun County v. Brandon, 237 Ala. 537,187 So. 868; Ballenger Construction Co. v. State Board of Adjustment, 234 Ala. 377, 175 So. 387; Turner v. Lumbermens Mutual Ins. Co., 235 Ala. 632, 180 So. 300; Opp Cotton Mills v. Administrator of Wage and Hour Div. of Dept. of Labor,312 U.S. 126, 657, 61 S.Ct. 524, 85 L.Ed. 624.

It is also observed that the Legislature shall set up standards for the guidance of the administrative agency and the procedure which shall be followed, including a record of the acts of the agency pursuant to such authority showing conformity to the standards which have been thus set up. Opp Cotton Mills v. Administrator of Wage and Hour Div. of Dept. of Labor, supra.

It could scarcely be contended that the finding of the council and the exercise of its powers under this act in respect to the conditions under which they are authorized to act would not be reviewable by the courts in the event that the delegated discretion should be abused. Commonwealth v. Johnson,292 Ky. 288, 166 S.W.2d 409.

We wish also to cite the following additional authorities which were very helpful in the consideration of this case. State Highway Board v. Gates, 110 Vt. 67, 1 A.2d 825; Prideaux v. Frohmiller, 47 Ariz. 347, 56 P.2d 628; In re Opinion of the Justices, 302 Mass. 605, 19 N.E.2d 807

It is our view, and we express the opinion to you, that the bill in question (House Bill No. 66, supra) does propose to make an appropriation by law to be enacted by the Legislature, of an ascertainable sum to be paid under the direction of a State agency for public benefits in conformity to standards or definitions adopted and declared in the bill which when enacted will be a declared legislative policy: that those standards as so declared conform to constitutional requirements, and, therefore, that the bill when duly enacted, as required by the Constitution, shall not violate section 43 (44) or 72 of the Constitution of Alabama.

In respect to Sections 42, 59 and 280 of the Constitution, we wish to make the following observations.

When the members of the Legislature are selected to serve under the proposed act, they do so as members of a board, not as members of the Legislature, nor as individuals. They are not ex officio members because they are also chairmen of certain legislative committees.

The legislator, who may be appointed on the board, is performing administrative acts wholly apart from that which he renders as a legislator. And the Legislature may validly select from their membership executive and administrative officers without violating Section 42 or 43 of the Constitution. Fox v. McDonald, 101 Ala. 51, 13 So. 416, 21 L.R.A. 529, 46 Am.St.Rep. 98. There is no reason why he cannot be appointed on the board unless it is found in Section 59 or 280 of the Constitution. Section 59 of it prohibits a legislator "during the term for which he shall have been elected, (to) be appointed to any office of profit under this state, which shall have been created, or the emoluments of which shall have been increased during such term, except such offices as may be filled by election by the people."

The inquiry hinges on what is an office of profit under this state. The Court of Appeals of New York in People v. Tremaine,252 N.Y. 27, 168 N.E. 817, 821, have discussed the question under somewhat similar circumstances. Two members as chairmen of legislative standing committees, were made ex officio members This was said to confer administrative powers on two of its members, holding that it cannot engraft executive duties upon a legislative officer without giving them civil appointment to administrative offices. The Constitution prohibited a member from receiving "any civil appointment within this State * * * during the time for which he shall have been elected." Const. 1894, art. 3, § 7. This was held to mean "any placing in civil office or public trust, pertaining to the exercise of the powers and authority of the civil government of the state." It will be noted that means any "civil appointment." Ours is "any office of profit under this state.' Each state can adopt its own policy, manifested by the language used. The Alabama policy manifested in the Constitution of 1875 was interpreted in Montgomery v. State, 107 Ala. 372,18 So. 157, 158, prior to the Constitutional Convention of 1901. In it, the term "civil office of profit" was under consideration. We are not here concerned with the omission of "civil," but with the meaning of an office of profit. In that case, the connotation of an "office" was emphasized. The term certainly means a public office. We have in several cases pointed out the distinction under our system between a public office and a public employment. Jefferson County v. Case, ante, p. 56,12 So.2d 343; State ex rel. Hyland v. Baumhauer (State ex rel. Mantell v. Baumhauer), ante, p. 1, 12 So.2d 326.

In those cases we gave careful consideration to the meaning of an "office" in this state for the purpose then in hand. It is in broad terms that he must be invested with a portion of the sovereign power of the state. It is the same here. Under the definitions there given, we think that the members of the Legislature who may be elected members of the council under authority of the proposed bill No. 66, supra, will be thereby "appointed to any office of profit under this state" as set out in Section 59, Constitution of 1901, noting that the act carries compensation for the service rendered. However, we wish to say that the result above announced would be different if no compensation were provided for members of the Legislature who were appointed to membership on the council, and that provision for their actual expenses alone would not be treated as such compensation

For like reason the proposed bill, as now set up, will violate Section 280 of the Constitution because it carries with it compensation.

Respectfully submitted,

LUCIEN D. GARDNER Chief Justice.

WILLIAM H. THOMAS Associate Justice.

VIRGIL BOULDIN Associate Justice.

ARTHUR B. FOSTER Associate Justice.

J. ED. LIVINGSTON Associate Justice.

THOMAS S. LAWSON Associate Justice.

To the Senate of Alabama Capitol Montgomery, Alabama.

Gentlemen:

I am of opinion that Section 72 of the Constitution, when interpreted in the light of its history and the evils it was intended to remedy, as stated by Justice Brickell in Smith v. Speed, 50 Ala. 276, requires an appropriation for a specific purpose. State ex rel. Turner v. Henderson, 199 Ala. 244, 245,74 So. 344, L.R.A. 1917F, 770.

I am further of opinion that the effect of the enactment of the proposed bill into law, assuming that this may be done, is an abdication by the Legislature of its power over any surplus in the state treasury after meeting other appropriations, and a delegation of their power to the proposed board.

I concur in the thought expressed by the other Justices that said bill, if enacted, would violate Section 59 of the Constitution.

Respectfully submitted,

JOEL B. BROWN Associate Justice Supreme Court of Alabama.