Summary
opining that the creation of honorary legislative offices with remuneration would not violate § 98's proscription on retirement pay because of this legal fiction
Summary of this case from Johnson v. Bd. of Emp. Retirement SystemOpinion
No. 347.
July 10, 1995.
Members of the House of Representatives Alabama State House Montgomery, Alabama
Dear Representatives:
We acknowledge receipt of House Resolution 233, requesting an advisory opinion as to whether § 3 of House Bill 728 ("H. 728") violates Amendment No. 513 to the Alabama Constitution of 1901, which amends § 98 of the Alabama Constitution. H. 728 reads:
"A BILL "TO BE ENTITLED "AN ACT
"To create the offices of Honorary Member of the House of Representatives, Honorary Senator, and Honorary Lieutenant Governor of the State of Alabama and provide for the requirements for holding the offices.
"BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
"Section 1. Any former member of the state Senate or House of Representatives who has served six years in the state Legislature and has attained the age of 60, may elect to hold the office of Honorary Senator if the legislative service was totally in the state Senate or Honorary Representative if the legislative service was totally in the state House of Representatives. If the legislative service was attained in both the Senate and House of Representatives, the former representative or senator may elect to become either an Honorary Senator or an Honorary Representative.
"Section 2. Any former Lieutenant Governor of the state who has served six years as Lieutenant Governor or has six years of combined service as Lieutenant Governor and a member of either the state Senate or House of Representatives, and has attained the age of 60, may elect to hold the office of Honorary Lieutenant Governor, Honorary Senator, or Honorary Representative.
"Section 3. Once a former Lieutenant Governor or a former member of the state Legislature elects to become an Honorary Senator, Honorary Representative, or Honorary Lieutenant Governor, the former member or Lieutenant Governor may be called upon by the respective presiding officers to serve on select committees which may be commissioned by resolution of either house of the Legislature, or by both in a joint resolution. The former member or former Lieutenant Governor so electing shall also serve on committees or commissions which may be established by the Governor or by the Chief Justice of the Alabama Supreme Court to study and provide recommendations on matters dealing with the executive and judicial branches of government. A former member of the Legislature may also be commissioned by the presiding officer of either House to sit and report on actions of the Legislature to the people of any district found to be without representation, to hear and report the ideas and concerns of the people of the district to the presiding officer and the membership of the house of the Legislature in which he or she is directed to sit, and to generally provide for the residents of the district. The Legislature shall, from time to time, fix expenses payable to the honorary officers and contributions which might be required of members and former members under the same provisions of Amendment No. 57 to the Constitution of Alabama of 1901, which permit the Legislature to fix legislative expense allowances.
"Section 4. Notwithstanding the provisions of any other law, former members of the Legislature and former Lieutenant Governors may be commissioned to these honorary offices after October 1, 1995.
"Section 5. This act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law."
Section 98, as amended by Amendment 513, Ala. Const. 1901, prohibits the legislature from retiring "any officer on pay, or part pay," and from making "any grant to such retiring officer." However, § 98 is not a restraint on the legislature's power to create new offices and to provide remuneration for duties performed by persons holding such offices. House Bill 728 would "create the offices of Honorary Member of the House of Representatives, Honorary Senator, and Honorary Lieutenant Governor of the State of Alabama and provide for the requirements for holding the offices." Sections 1 and 2 provide the qualifications for holding the respective offices. Section 3 of the bill prescribes the duties to be performed by persons holding the offices. Section 3 also provides that the legislature may fix expenses payable to the officers in the same manner as it sets legislative expense allowances pursuant to Amendment 57, Ala. Const. 1901. See Van Hart v. deGraffenried, 388 So.2d 1196 (Ala. 1980).
It has been a long-standing practice in Alabama for the legislature to create offices such as those proposed in House Bill 728, and to provide qualifications, duties, and remuneration for persons holding those offices. The legislature has created supernumerary offices for county commissioners, see Ala. Code 1975, § 11-3-26; supreme court justices, § 12-2-50 (and Ala. Code 1940 (Recomp. 1958), t. 13, §§ 31-33, for former provisions); appellate court judges, § 12-3-7 (and Ala. Code 1940 (Recomp. 1958), t. 13, § 105(1)-105(4) and 111(22)-111(23), for former provisions); probate judges, § 12-13-70 (and Ala. Code 1940 (Recomp. 1958), t. 13, § 312(1)-312(7) for former provisions); circuit court judges, § 12-17-40 (and Ala. Code 1940 (Recomp. 1958), t. 13, § 195(1)-195(6) for former provisions); clerks and registers, § 12-17-140 et seq.; district attorneys, § 12-17-210 et seq.; magistrates, § 12-17-260 et seq.; circuit court reporters, § 12-17-290 et seq.; sheriffs, § 36-22-60 et seq., and tax collectors and assessors, § 40-6-1 et seq.; and perhaps other such offices not disclosed by our research. This practice dates back at least to 1939. 1939 Ala. Acts, No. 341, p. 477. Similarly, the legislature has created the office of governor's councillor, Ala. Code 1975, § 36-13-13.
This Court upheld the constitutionality of judicial supernumeraries in Southern Ry. v. Carter, 276 Ala. 218, 160 So.2d 628 (1964). The people of Alabama have endorsed remuneration for judicial supernumeraries by ratifying Amendment 328, Ala. Const. 1901, wherein § 6.16 states:
"The legislature shall provide by law for the retirement of judges, including supernumerary judges, with such conditions, retirement benefits, and pensions for them and their dependents as it may prescribe. No person shall be elected or appointed to a judicial office after reaching the age of seventy years, provided that a judge over the age of seventy may be appointed to the office of supernumerary judge if he is not eligible to receive state judicial retirement benefits."
(Emphasis added.)
In Zeigler v. Baker, 344 So.2d 761 (Ala. 1977), this Court held unconstitutional an act granting retirement benefits to former governors. The Court distinguished the remuneration provided for judicial supernumeraries from the retirement benefits proposed for former governors, stating: "[T]he monetary benefits derived by judicial officers serving as supernumeraries [were] based upon appointment and the performance of duties." 344 So.2d at 767. The later act creating the office of governor's councillor prescribes duties for a governor's councillor, who serves at the pleasure of the governor. Ala. Code 1975, § 36-13-13.
In James v. Thompson, 392 So.2d 1178 (Ala. 1981), this Court upheld Governor James's refusal to issue a commission to Thompson as a supernumerary sheriff on the ground that Thompson had been convicted of a felony. The Court cited § 60 of the Constitution, which prohibits any person convicted of infamous crimes from "holding any office of trust or profit in this state." The Court held that the position of supernumerary sheriff was such an office:
"The legislature, in creating a supernumerary program for elected sheriffs in Alabama, necessarily created the office of supernumerary sheriff. Although the duties of such office are limited in scope and the performance of such duties [is] contingent and narrowly defined, the statutorily prescribed position and function of a supernumerary sheriff is that of a public office — an 'office of trust and profit.' Otherwise, the compensation provisions of the Act clearly would run afoul of § 98 of our State Constitution, which proscribes any legislative grant of retirement pay to any public officers."
392 So.2d at 1180 (emphasis in original).
House Bill 728 prescribes duties to be performed by holders of the offices created. Therefore, the expenses payable to the proposed new honorary legislative officers are more like the monetary benefits provided to judicial and other supernumerary officers and to the governor's councillor than the retirement benefits proposed for former governors at issue in Zeigler v. Baker, supra.
We therefore respectfully answer the question by stating that, in our opinion, the provisions of § 3 of H. 728 do not violate § 98 of the Alabama Constitution of 1901 as amended by Amendment 513.
SONNY HORNSBY Chief Justice
RENEAU P. ALMON
MARK KENNEDY
KENNETH F. INGRAM
RALPH D. COOK Justices
In our opinion, the provisions of § 3 of House Bill 728 do not violate Amendment No. 513 of the Constitution of Alabama of 1901, which amends § 98 of the Alabama Constitution, because of the principles by which this Court must be guided when reviewing a challenge to the constitutionality of a legislative act. See Opinion of the Justices No. 346, 665 So.2d 1357 (Ala. 1995) (Maddox and Houston, JJ., dissenting). This Court must recognize that its power to strike down as violative of the Constitution a legislative act or a proposed legislative act is a delicate power that must, in all cases, be exercised with great caution. (Constitution of Alabama of 1901, §§ 42 and 43.) Chief Justice Gardner, writing for a majority of this Court in Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So.2d 810 (1944), cert. dismissed, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945), described, as well as anyone has, this judicial power in terms of what should be our judicial standards of review in all such cases, as follows:
"Uniformly, the courts recognize that this power is a delicate one, and to be used with great caution. It should be borne in mind, also, that legislative power is not derived either from the state or federal constitutions. These instruments are only limitations upon the power. Apart from limitations imposed by these fundamental charters of government, the power of the legislature has no bounds and is as plenary as that of the British Parliament. It follows that, in passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government. All these principles are embraced in the simple statement that it is the recognized duty of the court to sustain the act unless it is clear beyond reasonable doubt that it is violative of the fundamental law. State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487, 121 A.L.R. 283 [(1939)].
"Another principle which is recognized with practical unanimity, and leading to the same end, is that the courts do not hold statutes invalid because they think there are elements therein which are violative of natural justice or in conflict with the court's notions of natural, social, or political rights of the citizen, not guaranteed by the constitution itself. Nor even if the courts think the act is harsh or in some degree unfair, and presents chances for abuse, or is of doubtful propriety. All of these questions of propriety, wisdom, necessity, utility, and expediency are held exclusively for the legislative bodies, and are matters with which the courts have no concern. This principle is embraced within the simple statement that the only question for the court to decide is one of power, not of expediency or wisdom. 11 Am.Jur. pp. 799-812; A.F. of L. v. Reilly, District Court of Colorado, 7 Labor Cases No. 61,761.
"The broad doctrine as thus announced is sustained by the weight of authority, both in the Federal and the state courts. For our own State the cases of City of Ensley v. Simpson, 166 Ala. 366, 52 So. 61 [(1909)], and State v. Ala. Fuel Iron Co., 188 Ala. 487, 66 So. 169 [(1914)], L.R.A. 1915A, 185 Ann.Cas. 1916E, 752, furnish apt illustrations. And as for the Federal courts, reference may be made to Flint v. Stone Tracy Co., 220 U.S. 107, 31 S.Ct. 342, 55 L.Ed. 389 [(1911)], Ann.Cas. 1912B, 1312.
"Likewise, another principle should be kept in mind, and that is: Where the validity of a statute is assailed and there are two possible interpretations, by one of which the statute would be unconstitutional and by the other would be valid, the courts should adopt the construction which would uphold it. 11 Am.Jur. p. 725. Or, as otherwise stated, it is the duty of the courts to adopt the construction of a statute to bring it into harmony with the constitution, if its language will permit. This principle has been often recognized by our own Court. State v. Birmingham So. Ry. Co., 182 Ala. 475, 62 So. 77 [(1913)], Ann.Cas. 1915D, 436; Whaley v. State, 168 Ala. 152, 52 So. 941, 30 L.R.A., N.S. 499 [(1909)] State ex rel. Collman v. Pitts, 160 Ala. 133, 49 So. 686, 135 Am.St.Rep. 79 [(1909)]. It was well stated by the Supreme Court of the United States in National Labor Relations Board v. Jones Laughlin Steel Corp., 301 U.S. 1, 30, 57 S.Ct. 615, 621, 81 L.Ed. 893, 108 A.L.R. 1352 [(1937)], in the following language:
" 'The cardinal principle of statutory construction is to save and not to destroy. We have repeatedly held that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act. Even to avoid a serious doubt the rule is the same.'
"Bearing in mind these well-recognized principles, we proceed to a consideration of the constitutional questions here presented."
246 Ala. at 9-10, 18 So.2d at 814-15.
Does House Bill 728 "retire any officer on pay or part pay" or make "any grant to such retiring officer"? If we exercise our will and disregard our standards of review, we could hold that it does, for that is one way that House Bill 728 could be interpreted. However, if we follow our standards of review, as detailed by Chief Justice Gardner, and interpret House Bill 728 so that it will be valid, it does not, for the legislature has the plenary power to create new offices and to provide remuneration for duties performed by persons holding those offices. Whether it is proper, or wise, or necessary, or utilitarian, or expedient to enact House Bill 728 and thereby create those offices and to provide remuneration for duties performed by persons who will hold those offices, is not a judicial, but a legislative decision. The Courts have only the power to determine whether the State or Federal Constitution limits the state legislature's plenary power to enact House Bill 728, interpreting the bill so that it will be valid, if it can be so interpreted. In our opinion, Amendment No. 513 does not prohibit the Alabama legislature from enacting House Bill 728, if it in its wisdom deems it appropriate to do so.
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 on 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.