Opinion
No. 19.
October 27, 1932.
Response of the Justices of the Supreme Court to questions propounded by the Governor of the state under Code 1923, § 10290.
Questions answered.
Oct. 25, 1932.
To the Justices of the Supreme Court of Alabama, Montgomery, Alabama.
Gentlemen: Will you please give to me, as provided by section 10290 of the Code of Alabama, your written opinion on the following important constitutional questions:
The Legislature of Alabama has passed and has presented to me for action thereon as chief executive of the state of Alabama, a bill known as Senate Bill No. 197, a copy of which is hereto attached.
Will you please advise whether the said bill offends section 213 of the Constitution of Alabama.
Please also advise whether the said bill offends section 93 of the Constitution of Alabama.
You will note that section 2 of the act provides that the $300,000, which is to be paid as a rental to the bridge corporation for the rental of the bridges, shall be used in payment of the interest and/or principal of any refunding bonds issued by the Alabama state bridge corporation, and that section 3 provides that the said lease shall continue for such length of time as the Alabama state bridge corporation may have any refunding bonds outstanding, and that said lease shall also provide that said property shall be used without the collections of tolls or charges from the public, but shall be used in connection with and as a part of the public highway system of the state of Alabama during the term of this lease.
Would the provisions herein cause the state to assume the bonds and to pay the same, and would this be in violation of section 213 of the Constitution of Alabama?
Please also advise whether the provision that the bridges shall be made free, and that no toll shall be collected, would have the effect of impairing the obligation of the contract which the bridge corporation, under provisions of law, made with the purchasers of the bonds; the effect of such agreement being that tolls would be collected and would be used in the payment of the interest and principal on said bonds.
This act was presented to me on this day and, as you know, it is necessary that I act on it within the time provided by the Constitution.
Yours very truly,
B. M. Miller, Governor.
The following is a copy of Senate Bill 197:
A Bill to be Entitled An Act To provide for the leasing to the State Highway Department of the State of Alabama by the Alabama State Bridge Corporation of all of the bridges and other property now owned by the Alabama State Bridge Corporation; to provide the method and manner of execution of said lease and the future use of said property, and to make an appropriation therefor.
Be it Enacted by the Legislature of Alabama:
Section 1. That the State Highway Department of the State of Alabama be and is hereby authorized to rent or lease from the Alabama State Bridge Corporation all of the fifteen toll bridges and other property now owned by the Alabama State Bridge Corporation, said lease to be for an annual rental of not exceeding Three Hundred Thousand Dollars, which sum or so much thereof as is necessary is hereby appropriated for said purpose mentioned in this Act.
Section 1 1/2. The Alabama State Bridge Corporation is hereby authorized to execute the lease herein provided for.
Section 2. That the said sum of Three Hundred Thousand Dollars herein appropriated shall be set aside as a trust fund out of any money belonging to or heretofore or hereafter appropriated for the use and benefit of or to the State Highway Department not otherwise heretofore appropriated and shall be paid annually to the Alabama State Bridge Corporation, and shall be used by it exclusively for the payment of the interest and/or principal of any refunding bonds issued by said Alabama State Bridge Corporation as the same falls due or matures and shall be used for no other purpose.
Section 3. That said lease shall provide that the State Highway Department of the State of Alabama shall at all times keep repaired and in good condition each and every bridge and/or other property so leased as a part of the public highway system of the State of Alabama without expenses to the Alabama State Bridge Corporation, and in case of a destruction of any of said property during the term of said lease the State Highway Department shall reconstruct such property as is destroyed in addition to the annual rental above provided for, and no insurance shall be required to be carried on said property. That said lease shall continue for such a length of time as the Alabama State Bridge Corporation may have any refunding bonds outstanding, and said lease shall also provide that said property shall be used without the collections of tolls or charges from the public, but shall be used in connection with and as a part of the public highway system of the State of Alabama during the term of this lease, but no provision in this Act or in said lease shall in anywise operate to impair the obligation of any contract now existing whereby the Alabama State Bridge Corporation is a party thereto.
Section 3 1/2. The power given herein to lease the said bridges shall not be exercised unless and until the bonds now outstanding against said bridges shall have been refunded on a basis that the annual interest and principal amortization fund shall not exceed Three Hundred Thousand ($300,000.00) Dollars.
Section 4. That this Act shall take effect immediately upon its approval by the Governor.
To his Excellency, the Governor of Alabama:
Replying to your inquiry of this date touching the constitutionality of Senate Bill No. 197, we submit the following:
Opinion of the Justices.
In effect, section 3 1/2 of the bill in question provides that its lease provisions, as well as others conditioned on such lease, shall not be effective until the present bridge bonds are refunded with new bonds whose interest and amortization or sinking fund shall not exceed the sum of $300,000 per annum appropriated by this act from the state highway funds. This removes all question of impairing the obligation of contract evidenced by the outstanding bonds.
Section 93, Constitution of 1901, forbidding the state to engage in works of internal improvement, was amended by Amendment 1, Code of 1923, page 428, and again by Amendment 11, Code of 1923, page 433, so as to authorize the state to engage in the construction and maintenance of highways and highway bridges, and to make appropriations for such purpose or purposes. The appropriation of $300,000 per annum out of the highway funds of the state, under the act submitted to us, is for bridges, a part of the highway system of the state. The act is therefore not violative of section 93 of the Constitution, as amended.
In Alabama State Bridge Corporation v. Smith, 217 Ala. 311, 116 So. 695, this court considered the act under which the present bridge bonds were issued and are now outstanding. The act was declared not violative of section 213 of the Constitution forbidding the creation of debt.
While the act declared it was not a debt of the state to the payment of which her faith and credit were pledged, the title of the act (General Acts of 1927, page 278), in cataloguing its purposes, contained this: "To provide for the payment of interest on said bonds by the State of Alabama," and the body of the act provided for payment of such interest from the surplus in certain named funds, "or the interest may be paid out of any funds in the Treasury as authorized by the amendment to Section 93 of the Constitution, as set out above. Such an amount of money as may be necessary to pay the interest herein provided for is hereby appropriated out of any monies in said funds not otherwise appropriated." General Acts 1927, pages 278, 281, § 1.
The funds under amended section 93, mean highway funds; all highway funds raised by special excise taxes or appropriations from general funds for highway purposes.
The act was upheld as not in violation of section 213, forbidding the state's becoming indebted. Pursuant to this decision the bonds were sold and the bridges built.
Thus the validity of the enabling act is finally adjudicated and binding under the doctrine of stare decisis.
This, of necessity, adjudicates the method and means of paying the interest on the bonds.
One of these alternate means is a continuing appropriation out of the highway funds of the state so long as any of such bonds are outstanding.
The present bill merely provides a continuing appropriation from the same fund of a definite sum per annum to cover interest on refunding bonds, as well as to provide an amortization fund to ultimately pay off the new bonds.
As for section 213 of the Constitution, the provisions of the present act are within the principles declared, and made final as to this bridge bond obligation by our former decision.
Limiting our decision to the conditions pertaining to this particular matter, we are of opinion the act submitted to us is not violative of section 213 of the Constitution.
LUCIEN D. GARDNER, WM. H. THOMAS, VIRGIL BOULDIN, ARTHUR B. FOSTER, Associate Justices.
I am of the opinion that the bill is a mere attempt to shift the debt of the bridge corporation to the state, and to fasten upon the state a debt forbidden by section 213 of the Constitution.
Justices BROWN and KNIGHT, concur in the foregoing.
JNO. C. ANDERSON, Chief Justice.