The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1923-06-10
Court Rules State Has Full
Power To Issue Port Bonds
Decision Means Alabama
Will Spend Ten Million De-
veIoping Waterway
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ner. Thomas C. Mcclellan and Will
liam II. Thomas. Associate Justices
A, ID. Sayre and b. NJ. Miller declined
to- join iii the consideration of the
governors request and advised the
governor that the issue had not come
to the court In the proper way and
that they could not consider it until
1t had been presented and argued
by counsel in the ordinary course of
the administration of justice
Although the advisory opinion Of
the majority did not give the name Of
the justice who prepared the opinion,
but Information at the capitol showed
that it was written by Associate JUS
tice Mcclellan after consultation with
the four justices who held it was
proper for the court to render the
opinion.
Before entering into a discussion
OF the facts which led the majority
to conclude that the amendment gave
the state the right to use its credit
in such form as provided by the leg
islature. the majority considered the
validity of the act under which Gov
ernor Brandon propounded the ques-
ton and reached the conclusion that
the advisory opinion act was constl-
tutional and valid.
The justice then took up section SO
of the constitution prohibiting the
state from engaging in works OF IN
ternal improvements. which was
amended by the voters by the port
amendment giving the state the right
to engage in the work of internal
improvement by the use of It's credit
to the amount of $10,000,000 for the
development of the seaport. Section
SO was analysed and the justices went
into detail in showing shat the sec
ton was placed in the constitution
for the purpose of prohibiting profit
gacy in the use of the states money,
a prohibition brought ON by the acts
OF state-officials prior to the ratifica-
ton of the constitution of 1870.
Constitution Amended.
The original section 90 was amend
ed by the votes in 1905 by the adop-
ton of an amendment giving the
state the right to make appropria-
tons for the construction of the pub
lie roads. Then came the amend
ment, ratified last year. which said
the state may at a cost of not ex-
ceeding $10.000,000 engage In the
work of internal Improvement OF
promoting, developing, constructing
maintaining and operating all har-
bors or seaports within the state or
its jurisdiction, provided such work
or Improvement shall always be ana
remain under the management ana
control of the state through Its state
harbor commission or other govern
ing agency
The justices rendering the ad-
yisory opinion reached the conclu-
sion that the adoption of the amend
ment absolutely freed the seaport
development of the inhibitions OF the
without limitation other
than that not more than ten million
dollars may be. expended and that
the state must always retain control
and management of the improve
ments made with the state funds.
Speaking of the rights of the
state under the port amendment, the
advisory opinion said
O o 0
state Has Discretion.
I'm respect TO seaport develop
ment. etc. the authorization eX-
messed in this amendment is to
enact laws appropriate to the states
engaging in such work of internal
IMPROVEMENT and operating the
same under the exclusive manage
ment of the state or its governing
agency.
The power to enact laws appro-
priate to effectuate seaport deNel-
opment invests the legislature with
employment of methods, measures
and means, so far as this amendment
is concerned, is only restrained by
the two limitations set forth IN the
amendment, namely, that the COST
shall not exceed ten million dollars
and that the Improvement. shail be
and remain under the management
and control of the state or an agency
created by it."
Under this analysis the port
amendment it will become the duty
of the legislature to say what meth
DDS. measures and means shall pc
used by the state in obtaining iunds
for the development of the seaport
and for the actual development work
after the funds shall have been OBJ
tanned. The Legislature by the ad-
visory opinion, is vested with power
Of saving that bonds shall be issued
and Of prescribing the time limit OF
the bonds. 1t may even say ina
short term notes shall be issued. In
other words. the legislature hoids
within it's hands the future of the
states seaport.
The five justices who signed the
oninion emphasized that 1t is ad
xisory only and issued in compliance
with the recent law and cannot De
made binding on the court when any
issue may be presented in the regu-
lar way.
O o o
Legislature To Act.
With the right of the state te
issue port bonds established, the
slegislature will be called upon mex
month to enact appropriate legis-
lation which will provide for the Is
suance of port Improvement bonds
The state harbor commission has al
ready made preliminary plans fol-
the construction of additional fac1ll'
ties and now is only awaiting the
sale of the bonds.
Justices Sayre and Miller took M
position whatever regarding tn
amendment and did not enter int
a discussion of the governors ques
ton. Nothing was said to indicat'
whether the two justices would hav'
voted with the majority had the,
believed the question had come be
fore them in the proper way.
The justices expressed the opinion
that 1t is not proper for one depart
ment of the government to call upoI
another department for advise OF