The age-herald. [volume] (Birmingham, Ala.) 1897-1902, 1899-07-02
THE BIRMINGHAM
AMENDMENT SUSTAINED
Chief Justice McCIenas Decision the Birmingham Amend
ment Case Appealed from the Birmingham
City Court

The following is the full text Of the de-
cision of Chief Justice Mcclellan in the
Birmingham amendment case:
May & Thomas Hardware Co, VS.. Mayor
and Aldermen of Birmingham.-Appeal
from Birmingham City Court
Mcclellan C. j.
Article XVII, Sec. l. of the constitution
is as follows: 1.-THE general assembly may,
whenever two-thirds of each house shall
deem it necessary, propose amendments TO
this constitution, which, having been read
on three several days in each house, shall
be duly published in such manner as the
general assembly may direct, at least three
months before the next general election for
representatives, for the consideration of
the people; and it shall be the duty of the
several returning officers, at the next gem
eral election which shall be held for repre-
sentatives. to open poll for the vote of
the vote of the qualified electors on the pro-
posed amendments, and to make return
of said vote to the secretary of state; and,
If it shall thereupon appear that majori-
ty of all the qualified electors of the state,
who voted at said election, voted in favor
of the proposed amendments, said amend
ments shall be valid, to all intents and pur-
poses, parts of this constitution; and the
result of such election shall be made known
by proclamation of the governor" Under,
and in supposed conformity to this organic
provision the general assembly of 1869
the state at the general election to be held
on the first Monday in August, 1898, for rep
resentatives, for their consideration, an
amendment to section seven, article eleven
of the constitution, providing a special tax
of one per centum for the city of Birming
ham, to be applied to the payment of in
terest on the bonds of said city and for a
sinking fund to pay off said bonds at the
maturity thereof" Section / of this act
proposes the amendment indicated in the
title and sets forth the terms and form
thereof. Section provides for the publ
cation of the proposed amendment. And
section 3, relating to the taking of the vote
of the electors on the proposed amendment,
is as follows: Sec. 3. Be it further enacted,
That at the general election to be held on
the first Monday in August, 1898, the quail
fled electors shall vote on said amendment
and it shall be the duty of the probate
judge in each county of the state to have
printed upon the official ballot to be used
in their respective counties at said election
the words For Birmingham Amendment
said words to be printed after the names
of candidates for state offices and before
the names of candidates for county Offices.
Any elector desiring to vote for said
amendment shall leave said words intact
upon his ballot, and any elector desiring to
vote against said amendment shall evidence
his intention to so vote by erasing or
striking out said words with pen or pencil.
The leaving of said words upon the ballot
shall be taken favorable vote, and the
erasure striking out of said words as
aforesaid shall be taken as an adverse vote
upon said amendment" Section of the
act provides for count of the ''votes given
on the proposed amendment" and section
provides for proclamation by the governor
of the result if favorable to the amend
ment.
This statue was complied with, the pro-
posed amendment was submitted to the
electors voted and a0ODtel by them
according to the terms of the enactment
the vote was counted, the result declared
and the governor issued his proclamation
making known the result The city of Bir-
mingham levied the additional tax of one
half of one per cent authorized by this sup
posed amendment and assessed the taxable
property of the city accordingly. The May
& Thomas Hardware company paid this adj
dtional tax on its property upon compul-
sion and under protest to the tax collector
of said municipality and brings this ac-
ton to recover back the amount so paid up
on the ground that said amendment was
not submitted to the electors of the state
in the mode provided by the constitution,
hence was not constitutionally adopted and
is not part of the organic law; and, con-
fessedly, if this position be well taken the
tax is Illegal and plaintiff is entitled to re-
cover. The city court sustained the de-
murrer, and entered judgment for the de-
PENDANT, and from that judgment this APP
peal is prosecuted.
And the position of appellant, as we un-
derstand it, is that section of the act is
unconstitutional and void, (and that of con-
sequence the amendment declared to have
been adopted at the election held under it
is likewise void for that, first that section
violates the spirit and purpose of section l
of article II of the constitution, quoted
above, which requires the validity of en-
amendment that majority of all the quail
flied voters voting at the election shall vote
in favor of the proposed amendment, and,
second, that the statute, or rather said Sec
ton thereof, is violative of section l OF
article of the constitution, which pre-
scribes the qualifications of electors, and
guarantees to every citizen possessing the
prescribed qualifications the right to vote
at every election by the people.
And the argument in support of the first
proposition is, in the brief of appellants
counsel, thus epitomized:
"(a). Under the provisions of the statute,
the amendment might be declared adopted
although a majority of all the qualified vot-
ers of the state, who voted at the election,
mad no intention, when they voted for state
and county officers, to vote upon the pro-
posed amendment, or did not manifest any
intention to vote for tho amendment or
desired to refrain from voting on the propo-
slion.
"Cb). The provisions of the statute render
1t impossible to ascertain with certainty
whether a majority of all the electors of
the state who voted at the election actual
ly and aftirmatively voted for the amend
ment within the spirit and meaning of the
constitution.
.(c). The constitution requires positive,
affirmative action on the part of the cleo
tor to manifest an intention to vote in fa-
vor of the amendment and no action to
manifest an intention to vote against it;
this statute requires positive affirmative
action on the part of the elector to mani