
    OPINION OF THE JUSTICES.
    No. 294.
    Supreme Court of Alabama.
    April 8, 1982.
   To the Members of the

House of Representatives

State Capitol

Montgomery, Alabama

Dear Representatives:

In House Resolution 274 you requested our opinion regarding H.B. 744 and a pending amendment thereto. House Bill 744 proposes to expand the boundary lines and corporate limits of the municipality of Foley, which is located in Baldwin County. It sets out a legal description of the changes to be effected. In accordance with Ala. Const.1901, § 106 (amended by amend. No. 341), H.B. 744 was published in a newspaper of general circulation in Baldwin County. Subsequently, an amendment decreasing the affected areas was voted out by Local Legislation No. 1 Committee. You have requested our opinion regarding two questions:

1. Would Section 1 of pending H.B. 744 with the said committee amendment adopted constitute a material variance from the advertisement so as to contravene Section 106 of the Constitution of 1901?
2. Would Section 1 of Pending [H.B.] 744 with the said committee amendment adopted contravene Section 61 of the Constitution of 1901?

We answer the first question in the affirmative and, therefore, pretermit discussion of the second.

This court has adhered to the rule that Ala.Const.1901, § 106, is contravened if there is a material change or contradiction in the substance in a proposed act as advertised. Birmingham-Jefferson Civic Center Authority v. Hoadley, 414 So.3d 895 (Ala.1982); Parrish v. Faulk, 293 Ala. 401, 304 So.2d 194 (1974); State ex rel. Wilkinson v. Allen, 219 Ala. 590, 123 So. 36 (1929); First Nat. Bank of Eutaw v. Smith, 217 Ala. 482, 117 So. 38 (1928). We observe that your request for an advisory opinion does not provide sufficient information from which we can ascertain the extent of change that the proposed amendment would effect to H.B. 744. The legal descriptions of the lands affected by H.B. 744 and its proposed amendment Advisory Opinion No. 294 do not allow us to accurately determine the extent of changes mentioned in H.R. 274. Nevertheless, we will assume, because the question has been posed, that the changes in the proposed amendment are material, and, therefore, they would contravene § 106 as amended.

Respectfully submitted,

C. C. Torbert, Jr. Chief Justice

James H. Faulkner

Janie L. Shores

T. Eric Embry

Sam A. Beatty

Oscar W. Adams, Jr.

Justices

MADDOX, Justice,

dissenting.

I cannot agree with the opinion of the majority of the Justices on this issue.

In Mayor, etc. of Ensley v. Cohn, 149 Ala. 316, 42 So. 827 (1907), this Court considered § 106 just six years after its ratification by the people, and regarding the requirements of local legislation, which in that case, proposed that city limits be altered or rearranged, stated:

“The substance of the proposed law in the present case is the altering or rearranging of the boundaries of the city. This was contained in the published notice of the intention to apply for the passage of the act, and, conceding that it was necessary to give the notice as required in section 106 of the Constitution, this would have been sufficient, without giving in minute detail and particularly the course and bearings of the boundary line. What was said, and the principle there stated, in Law v. State, 142 Ala. 62, 38 South. 798, finds ready application here. There can be no distinction in principle in the two cases on the question under consideration. See, also, Ex parte Black, 144 Ala. 1, 40 South. 133. The published notice having given the substance of the proposed law — the altering or rearranging of the boundaries of the city of Ensley — the fact that notice was also given of the proposed territorial lines, which were not followed, but were changed in the act as passed, does not invalidate the act or affect the principle above stated, since the fact remains that the notice given contained the substance of the law as enacted. The foregoing views are not in conflict with the decision in the case of Brame v. State, (Ala.) [148 Ala. 629] 38 South. 1031. The facts in that case readily differentiate it from the case before us.
“The bill as passed did not include in the city limits the railroad mentioned in the advertised notice. The proviso at the conclusion of section 1 of the act, in reference to the taxation of the railroads mentioned therein, is without any field of operation, since in the act as passed these railroads are not within the city limits, and may, therefore, be stricken out without affecting the main purposes of the act or its integrity. The rule is well settled that whenever a part of an act, objectionable on constitutional grounds, can be eliminated without affecting the purpose of the act or its integrity as a whole, this will be done, and the valid and unobjectionable part be permitted to stand. Such is the case here. The provision in the act in reference to the railroads can be eliminated and the balance permitted to stand without in the slightest affecting the integrity of the act as a whole.”

I am quite aware that the Mayor, etc. of Ensley v. Cohn decision of the Court was criticized in First National Bank of Eutaw v. Smith, 217 Ala. 482, 117 So. 38 (1928); the Court, in one short concluding paragraph, without examination of the constitutional debates, and without erudite justification, did opine:

“We have not overlooked the case of Mayor, etc. of Ensley v. Cohn, 149 Ala. 316, 42 So. 827, where it was held that the advertisement of a bill to alter municipal boundaries, which specified the boundaries proposed to be adopted, could be amended before passage by the specification of materially different boundaries. It will suffice to say that we are convinced the law was misapplied in that case, and we are unwilling to follow it now.”

In Birmingham-Jefferson Civic Center Authority v. Hoadley, [MS. March 19, 1982], - So.2d - (Ala.1982), I did extensive research into the reasons and purposes for § 106, and as I spelled out in my dissent in that case, I thought Mr. Justice Foster’s gratuitous statement in State ex rel. Wilkinson v. Allen, 219 Ala. 590, 123 So. 36 (1929), that a local bill which gave not only the substance, but also the details, could rarely be amended, was not good law, and certainly was not based on precedent.

I think Mayor, etc. of Ensley v. Cohn, decided, as I have pointed out, almost contemporaneously with the ratification of § 106 of the Constitution, correctly states the true intent of § 106, and that the Justices, in Opinion of the Justices, 252 Ala. 361, 41 So.2d 266 (1949), who cited Mayor, etc. of Ensley v. Cohn, were correct in doing so, because I am of the opinion that the following principle of law therein stated is correct:

“A narrow and literal construction [of § 106] would destroy all power of amendment in the legislative process, so that the legislature would be required to accept, if at all, every local bill in the exact terms of its proposal.” 
      
      . We find it unnecessary to set out H.R. 274, and its accompanying H.B. 744, the proposed amendment, and proof of publication of H.B. 744.
     