Opinion
No. 165.
October 21, 1959.
The Senate propounded questions to the Justices of the Supreme Court relating to the constitutionality of Senate Bill No. 426 to amend Section 1 of Act No. 527, Acts 1953, p. 734. The Justices were of the opinion that the pending bill would not violate Section 45 of the Constitution of 1901, but declined to answer questions pertaining to the constitutional validity of the existing act not changed by the proposed bill.
S.B. 426 by Mr. Dumas
"A Bill To Be Entitled An Act
"To amend Section 1 of Act No. 527, H. 411, Regular Session of the Legislature of Alabama of 1953, approved September 8, 1953, Acts of Alabama, 1953, page 734.
"Be It Enacted By The Legislature of Alabama:
"Section 1. Section 1 of Act No. 527, H. 411, Regular Session of the Legislature of Alabama of 1953, approved September 8, 1953, Acts of Alabama, 1953, page 734, is hereby amended so as to read as follows:
"Section 1. Any corporation which is not organized under the laws of this state and has no place of business in this state may maintain bank accounts, take and hold mortgages on real property located within the state, collect the debts secured thereby, and may appoint a custodian or agent to hold such securities, collect such debts, control such property, and enforce the provisions of such mortgages, without qualifying to do business in this state or without payment of taxes, except the taxes levied or assessed on such property. Such corporation may sue or be sued in this state in relation to such mortgages or real property, securities or debts, and service of process may be perfected by service upon any agent appointed by such corporation.
"Section 2. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law."
The Senate of Alabama State Capitol Montgomery, Alabama
Dear Sirs:
We acknowledge receipt of Senate Resolution No. 32 adopted on October 16, 1959, requesting an advisory opinion of the Justices concerning the constitutionality of Senate Bill No. 426, which is now pending before you.
An examination of the bill discloses that its purpose is to amend Section 1 of Act No. 527, approved September 8, 1953, and found in the 1953 Acts of Alabama at page 734. The proposed amendment changes Section 1 of Act No. 527 by deleting therefrom a proviso calling for payment by foreign corporations operating under said Act of all applicable municipal license taxes and a prescribed state occupational tax. No other change is sought.
It seems clear to us that questions 1 through 4 do not relate to the proposed change in Section 1. Instead, they relate to other provisions of Senate Bill No. 426 which are identical with provisions contained in Act No. 527. Thus, to answer these four questions would be, in effect, advising as to the constitutionality of an existing law. This we must respectfully decline to do. As said in Opinion of the Justices, 266 Ala. 370, 371, 96 So.2d 752, 753:
"We think it appropriate at this time to again invite attention to the fact that while as individual Justices the members of this court, within permissible limits of the statute, are privileged to give their individual opinions on constitutional questions properly submitted to them, yet the court of which they are members is a court of appellate review and the constitutionality of existing statutes should be tested by appropriate adversary proceedings when available or when at all possible. The end result of such proceedings would be of binding force, whereas the opinions promulgated under Title 13, supra [§§ 34-36, Code 1940], are not."
See, also, Opinion of the Justices, 267 Ala. 110, 112, 113, 100 So.2d 565; In re Opinion of the Justices, 264 Ala. 452, 455, 86 So.2d 778; In re Opinion of the Justices, 254 Ala. 177, 178-179, 47 So.2d 655
Questions 5 and 6 ask, respectively, whether the bill violates Section 45 of the Constitution "by containing more than one subject" or "by extending or conferring the provisions of a law by reference to its title only." We answer both of these questions in the negative.
Respectfully submitted, Ed. Livingston, Chief Justice. Thomas S. Lawson Robert T. Simpson Davis F. Stakely John L. Goodwyn Pelham J. Merrill, Associate Justices.