The Birmingham age-herald., 1921-02-23
JUSTICE GARDNER DEFENDS LIBERAL
 INTERPRETATIONS
Dissenting Jurist in Road Bond Case Declares Courts Should Hesitate In Adopt
 ing Strict Rules

Montgomery, February 22.-(Speclal.)-I Fully concurring ill the opinions already written by Justices Somerville and Thomas. dissenting from the majority opinion of the Alabama supreme court, which has declared the s25, ,00O,0o0 good roads bond issue amendment invalid, As sociate Justice Lucien D. Gardner, in an opinion filed with the clerk of the su- preme court Tuesday, ably states and supports his position as member of the minority in this particular case that the amendment in question should be up- held Quoting from the brief filed few days ago in connection with application to the supreme court for a rehearing Of the bond issue appeal, Justice Gardner says he is of the opinion that the time has now come when the supreme court of Alabama should not inquire too technically into any more irregularities in the manner of proposing and submit ting to the people that which they have solemnly adopted and subsequently rec ognized and acted upon as part of the Fundamental law of the state'
 TAKES DIRECT ISSUE
 It Is the contention of Justice Gardner.
 
 &4 of the constitution, upon which the majority of the court based it's decision declaring the good roads amendment in- valid and void, contemplates two sep arata acts, namely: A proposal of an amendment; after adoption of the pro- posal, necessary provision for subn,is- sion thereof to the people. He states 1t was not contemplated that the legisla- ture should order an election until after hA Sol To fhn had been passed by both houses.
 He further declares that section S4 contains no provision as to how the leg islature shall subsequently, order an elec- ton. nor is there any method prescribed for the passage of such act. Justice Gardner supforts the contention already brought out: that the authority to pro- pose an amendment is vested in the leg islature as an entity other than a law making body, while the authority to order an election and provide for the machinery thereof is vested in the leg isiature as law-making body In this connection, the statement is made that If this Is a correct premise, then it follows, under the authorities, that the legislature, acting in it's legislative ca pacity, was authorized to delegate to the governor the right and power of fixing the date of the election"
 LIBERAL RULING
 Stating that he is of the opinion that that part of section 2s4 dealing with the question of an election should be given a liberal, rather than strict and It, eral construction, Justice Gardner says:
 aThe strict rule of construction applied by the court in the instant case is en- tirely proper when there is under con sideration language of the constitution dealing with fundamental principles of government, or the life, liferty or prop e-ty rights of the citizens, or other mat ters of substantial character but those provisions directed to the law-makine body concerning the time or manner ol performing certain acts, liberal rule ol construction should be applied, and sucil directions held as merely directory, un' less the language used is such as tc negative such a construction"
 Justice Gardner explains that this rul- ing was announced in conStruing constr tutional provisions as to appointments and elections Continuing. Justice Gard Ter deeiares:
 SOLEMN TASK
 ..This court has many times declared it is a solemn thing to strike "a legis- 1ative act as contravening the funda mental law, and that before this is done the Judicial mind must be convinced tt tbat end beyond all reasonable doubt Rut to strike down an amedment to tna' constitution, submitted to and ratified by the people, is still more solemn, and, il possible, should call for higher de gree of caution and thorough conviction of the judicial mind"
 He maintains that the state has no only proclaimed the amendment to os adopted, but the people and the stat' have accepted and functioned under if that it has therefore been clearly adopted and ratified, and the state governmen frrnetioned and operated under the as sumption that it was a part of the or ganic law.
 Applying the same arguments in sup pcrt of the soldiers and sailors poll tax exemption amendment, Justice Gardne st.fes it ae his opinion that this amend nent also has been fully accepted ant