The Birmingham age-herald., 1921-02-04
MAJORITY OPINION
 lNVALlDATES ROAD
 BONDS AMENDMENT
tContinued from Page one)

SiCSAioir doOpeCd ny d
 majority the amendment providing for
 good roads bond issue of $25,000,ON is null and void. The expenses attending
 the election are lost, and the special election of February providing for the sale of road bonds at an attractive rate
 of interest is threatened with cancella- tion
 The saddest blow, however, is the fact
 that the entire Alabama better roads SyS- tem is in serious danger of complete col lapse, and in any event of indefinite delay. The money which the bona amendment made possible cannot be ob- tained because the amendment, as a d. rect consequence of the illegal election, is void.
 The action was friendly and submit
 ted solely to test the legality of the
 bond issue. Bond buying companies ln-
 sisted that the suggestion of technical
 error be adjudicated by supreme court
 decision.
 A motion will be filed for a rehearing. POWER IS OPTIONAL
 Touching on this same point in his
 dissenting opinion, Justice Thomas
 maintained that the power to fix the
 time for the holding of the election at
 which the proposed amendment was to
 be submitted to the qualified voters of
 the state, could be delegated to the
 governor or to any other agent whom
 the legislature might see fit to appoint.
 The original bill, which was in the
 character of friendly proceeding was
 filed in the Montgomery county circuit
 court in equity by A. M Johnson, Jr.,
 a Montgomery county taxpayer and automobile owner, and had for it's pur-
 pose, determination of the constitu-
 tionality of the good roads bond issue
 amendment. The bill, in effect, sought
 injunctive relief to restrain the state
 highway commission and other admin
 istrative agencies from observing and giving effect to the amendment The validity of the amendment was
 sustained by the lower court, where
 upon MT. Johnson took an appeal to
 tho supreme court, which on Thurs
 day, reversed the ruling of the cir
 cult court and remanded the cause for
 a new hearing in the lower court,
 should such a step be decided upon
 after the highest court in the state
 has declared the amendment void. PREPARING INTENDS It is probable that application will
 be made for rehearing in the bond issue amendment case, but unless some new grounds can be developed upon
 which validity of the amendment might
 be further argued, it is not likely that the matter will again be taken up in the lower court. There is some talk Of oh CAlEd ScSolOn Ol Lne lcSlSldLuTe TOT resubmission of the amendment, but
 such an eventuality Is regarded gen. erally as highly improbable In his majority opinion which held
 the bond issue amendment invalid, Justice Mcclellan first recites a short statement of the case as it was pre- sented to the court, including the five
 reasons assigned in the original bill as to why the supreme court should hold
 the amendment void. These reasons follow:
 l. That the election on said amend
 ment was not ordered and the day of
 the election fixed by the legislature as
 required by the constitution, but that the legislature delegated this power
 and authority to the governor of the state.
 PRETTY MUCH WRONG
 ?. That said amendment was im-
 properly and illegally submitted to the
 governor for his approval or disap-
 proval; that the governor of the state
 amended and materially changed the
 said amendment and that thereafter the legislature did not readopt the
 same and make 1t it's own, as required Dy section 2s4 of the constitution. 5. That said amendment was not properly and legally advertised in the governors proclamation as required bv section 2S4 of the constitution and by the acts of the legislature of 1915. page 602. '' 4. That the resolution passed by the legislature proposing said amendment contained other matters of legislative nature, not germane to said amendment. which said matter is embraced in section z of the said resolution, contrary to the provisions of section 2S4 of the consti- tuition.
 5 That the language of said amend
 ment is so vague and indefinite that it's
 meaning is incapable of ascertainment
 and that 1t is therefore incapable of en- forcement and therefore void. VIOATED SECTION Commenting upon the first contention,
 Justice Mcclellan. after stating that the setting of date for the submission of an amendment to the constitution is a power that is reposed in the legislature
 as an entity. not in it's capacity to make laws. quotes from section 2S7 of the con stitution:
 No act or resolution of the legislature passed in accordance with the provisions of tho article, proposing amendments to this constitution, or calling convention for the purpose of altering or amending |. the constitution of this state. shall be submitted for the approval of the gover- ! nor, but shall be valid without his ap- proval"
 Commenting upon this quotation, Jus tice Mcclellan says: Tt is to be Ob- served that the form of expression ems ployed is positive and prohibitory; and
 that it manifests an intent of the most emphatic character"
 After citing various authorities in sup port of the majority opinions ruling as to the manner in which the amendment was submitted to the qualified voters. Justice Mcclellan states:
 ELECTION IS VOID "Our opinion is. and we so hold in ex- pression of the plain letter and intent Of | section 2A of the constitution, that the legislature omitted, by failing itself to appoint the day for the election, to ob- serve that prerequisite to the valid sub- the electors of the state, and that the proposed amendment not having been constitutionally submitted to an election so appointed was and is invalid and never became part of the constitution of Alabama
 This conclusion renders relatively un- important the other grounds or reasons asserted against the validity of the road bond amendment Nevertheless. it is thought appropriate to state, without finally deciding their merit. the other grounds assigned, thereby noting possible imperfections in submitting amendments to the constitution that may in the fu- ! ture surely be avoided.
 PLAIN VIOLATION It is then stated that the ac embodying the proposed road boEd amendment was , submitted to the governor in plain vio-
 lation of section 2s7 of the constitution, which provision was evidently designed