
    OPINION OF THE JUSTICES.
    No. 299.
    Supreme Court of Alabama.
    Aug. 11, 1982.
   To the Honorable Members of the Senate of

Alabama

State Capitol

Montgomery, Alabama

Gentlemen:

We are in receipt of Senate Resolution 6 sponsored by Senator Higginbotham, which reads as follows:

“BE IT RESOLVED BY THE SENATE OF THE LEGISLATURE OF ALABAMA, That we respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court or a majority of them, to give this body their written opinions on the following important constitutional question which has arisen concerning the pending bill, S.B. 1:
“1. Does Section 16-5-8, paragraphs (e) and (d) of Senate Bill 1, concerning the Alabama Higher Education Commission’s authority to approve new programs or units or to terminate existing programs and units of instruction, research and public service funded by state funds conflict with Article XIV, Section 264 and Amendment No. 161, Section 1 of the Constitution of Alabama 1901, as amended; that is, would the Alabama Higher Education Commission’s authority to approve and/or terminate such programs and units apply equally to all public post-secondary institutions in Alabama regardless of whether they were subject to constitutionally prescribed management and control or statutorily prescribed management and control by their respective boards?”

We answer as follows:

We note that § 16-5-8(c) of S.B. 1 makes no change in existing law. Thus, we do not address that part of the question. Section 16-5-8(d), however, does conflict with Article XIV, § 264, and Amendment No. 161, § 1, of the Constitution of Alabama 1901, as amended.

Both constitutional provisions provide that the state university and Auburn University shall be under the management and control of a board of trustees. Therefore, any diminishment of that authority requires a constitutional amendment. Because management and control of these two institutions is vested in a board of trustees by virtue of the Constitution, the legislature has no authority by act to deprive the board of trustees of their discretion as to the management and control of these institutions. Stevens v. Thames, 204 Ala. 487, 86 So. 77 (1920).

Respectfully submitted,

C. C. TORBERT, JR,

Chief Justice

HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

T. ERIC EMBRY

Justices  