author: JAMES H. FAULKNER ERIC EMBRY Associate Justices PELHAM J. MERRILL JAMES N. BLOODWORTH RENEAU P. ALMON JANIE L. 'SHORES Associate Justices HOWELL T. HEFLIN Chief Justice HUGH MADDOX Associate Justice

text:
    OPINION OF THE JUSTICES.
    No. 215.
    Supreme Court of Alabama.
    Sept. 5, 1975.
   By Senate Resolution No. 58 of the Senate of Alabama, 1975 Regular Session, The Justices of the Supreme Court of Alabama were requested to give an opinion regarding questions posed concerning the constitutionality in several particulars of Senate Bill No. 862.

Questions answered.

To the Honorable Members of the Senate of Alabama

State Capitol

Montgomery, Alabama

Sirs:

We are in receipt of Senate Resolution No. 58 of 22 July 1975, Alabama Legislature, Regular Session 1975. It requests our opinion as to questions posed regarding the constitutionality of Senate Bill No. 862 in several particulars. For ease of reference we will set out the bill in its entirety followed by the opinion in which each question posed by the resolution will be stated together with its answer, in seri-atim.

A

“ Synopsis: This bill authorizes joint dr cooperative action by municipalities, electric boards and cooperatives in cooperation with municipal electric authorities, public utilities and others in the planning, financing, developing, acquisition, construction, improving, enlarging, owning, operating and maintaining facilities for the generation, transmission, transformation and distribution of electric power and energy.

By Messrs. Stewart, King, Adams, Foshee, Littleton, Flippo, demon and Pearson S. 862

RFD - C.T. & U.

A BILL TO BE ENTITLED AN ACT

To provide for the joint ownership and operation of systems and facilities for the generation, transmission, transformation and distribution, or any of them, of electric power and energy which systems and facilities may be situated within or without the State or partly within and partly without the State; to authorize each town, city or incorporated municipality, each electric board (public corporations organized under Act No. 175 of the 1951 Regular Session of the Alabama Legislature, as amended) and each electric cooperative (corporations organized under Article 1, Chapter 3 of Title 18 of the Alabama Code of 1940, as amended) to plan, finance, develop, acquire by purchase or construction, lease as lessee or lessor, improve, enlarge, own, operate, manage and maintain such systems and facilities or any part thereof or undivided interest therein, jointly or in cooperation with, and to enter into and carry out the provisions of any contract or contracts with respect thereto with one or more other municipalities, electric boards, cooperatives, or any other person, firm or corporation including, without limitation, any municipal electric authority incorporated as a public corporation under the laws of the State heretofore or hereafter enacted, the State of Alabama, the United States of America or any other state, or any agency of any of them, or any public or private corporation organized under the laws of any state or of the United States of America heretofore or hereafter enacted; to provide that such contract or contracts may contain such provisions as the parties thereto may determine, including the designation of an agent to act for all parties to the contract and the arbitration of disputes; to authorize any municipality, electric board or cooperative to issue its bonds and bond anticipation notes to pay the cost of its interest in such systems and facilities and to pledge to payment of its bonds the revenues from its interest in such systems and facilities and from any electric system owned by it; to provide that such bonds shall be legal investments and eligible as security for the deposit of public funds; to authorize any municipality, electric board and cooperative to enter into trust indentures and other contracts with respect to its bonds and to fix, maintain and alter rates, fees and charges for the use of and for services furnished by any electric systems and facilities or interest therein owned by it; to exempt all municipalities, electric boards and cooperatives and their electric systems and facilities and interest therein from regulations by the Alabama Public Service Commission; to exempt every municipality, electric board and cooperative issuing bonds under the Act from the laws of the State of Alabama governing usury; to exempt all contracts made by municipalities, electric boards and cooperatives in the exercise of any power or authority under the Act from the provisions and requirements of Act No. 217 adopted at the 1967 Special Session of the Alabama Legislature, as amended, with respect to competitive bidding; and to provide that all property of any municipality or electric board acquired in the exercise of any right or power granted in the Act and the income therefrom, all bonds issued by any municipality or electric board under the Act and interest therefrom and all deeds, indentures and other documents executed by or delivered to any municipality or electric board shall be exempt from all state, county, municipal and other taxation in the State.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. Definitions. Whenever used in this Act, unless a different meaning clearly appears in the context, the following terms, whether used in the singular or plural, shall be given the following respective interpretations:

(a) ‘Cooperative’ or ‘Electric Cooperative’ means any corporation organized pursuant to the provisions of Article 1, Chapter 3 of Title 18 of the Alabama Code of 1940, as amended.
(b) ‘Eligible Participant’ means any Municipality, Electric Board or Electric Cooperative.
(c) ‘Electric Board’ means any corporation organized pursuant to the provisions of Act No. 175 adopted at the 1951 Regular Session of the Legislature of Alabama, as amended, which is authorized to own or operate an electric system as defined in said Act.
(d) ‘Governing Body’ means, when used with respect to a Municipality, the council, board of commissioners or other governing body of such Municipality, when used with respect to an Electric Board, the board of directors of such board and, when used with respect to an Electric Cooperative, the board of trustees of such Cooperative.
(e) ‘Issuer’ means, when used with respect to bonds or notes, the Municipality, Electric Board or Cooperative issuing such bonds or notes.
(f) ‘Municipality’ means any town, city or incorporated municipality in the State.
(g) ‘Municipal Electric Authority’ means any public corporation authorized to own a Project which corporation is organized or incorporated pursuant to authorization by the Governing Bodies of one or more Municipalities under any law of this State heretofore or hereafter enacted.
(h) ‘Project’ means any system or facility for the generation, transmission, transformation and distribution, or any of them, of electric power and energy by any means whatsoever, including, but not limited to, any one or more electric generating units situated at a particular site, which system, facility or generating units may be situated within or without the State or partly within and partly without the State.
(i) ‘Project Costs’ means the cost of any Project or any undivided interest in any Project, and shall include without limitation the cost of acquisition, construction, reconstruction, improvement, enlargement, betterment, extension or replacement of any Project or any part thereof or an undivided interest therein, cost studies, plans, specifications, surveys, estimates of costs and revenues relating thereto, the cost of land, land rights, rights of way and easements, water rights, fees, permits, approvals, certificates, franchises, the cost of preparation of applications therefor and securing the same, administrative, legal, engineering, inspection expenses, the cost of issuance of bonds, including financing fees, underwriting fees, cost and expense, and fiscal agents’ fees, initial fuel costs, start up cost, the cost of operation and maintenance of the Project and interest on bonds during the period of construction and for such reasonable period thereafter as may be determined by the Governing Body of the Issuer, the establishment of reserves for the payment of the principal of and interest on bonds and for replacements, extensions, enlargements and improvements and repairs to any Project, and all other costs which the Governing Body of the Issuer may determine to be necessary or desirable.
(j) ‘State’ means the State of Alabama.
(k) ‘Utility’ means any person, firm or corporation which owns or proposes to acquire any facility or facilities or part thereof or undivided interest therein used or useful in generating, transmitting, transforming, selling or distributing electric power and energy, including, without limitation, an Eligible Participant, a Municipal Electric Authority, the State, the United States of America, any other state or any agency of any of them, or any public or private corporation organized under the laws of any state or of the United States of America heretofore or hereafter enacted.

Section 2. Authority of Eligible Participants to engage in joint and cooperative action. In addition and supplemental to the powers otherwise conferred on each Eligible Participant by the laws of the State, each Eligible Participant is hereby authorized and empowered to plan, finance, develop, acquire by purchase or construction, lease as lessee or lessor, reconstruct, improve, enlarge, own, operate, manage and maintain any Project or Projects or any part thereof or undivided interest therein jointly or in cooperation with one or more other Utilities and to make such plans and enter into such contracts in connection therewith not inconsistent with the provisions of this Act as the Governing Body of such Eligible Participant may deem desirable.

Section 3. Contracts of Eligible Participants. Each Eligible Participant is hereby authorized to enter into and carry out the provisions of any contract or contracts with one or more other Utilities providing for the planning, financing, developing, acquiring by purchase or construction, leasing as lessee or lessor, improving, enlarging, owning, operating, managing and maintaining one or more Projects. Any such contract or contracts may contain such terms and provisions as the Governing Body of the Eligible Participant may determine to be desirable, including without limitation any one or more or all of the following:

(a) the duration of the contract, which may extend for a term not to exceed 50 years;
(b) the method of financing the Project;
(c) the acquisition of the Project by purchase, lease or construction, which may provide that one of the parties to the contract or some other person, firm or corporation shall supervise such acquisition as agent for all parties to the contract;
(d) the leasing of the Project to one of the parties to the contract or some other person, firm or corporation, which lease may extend for a term not to exceed 50 years;
(e) the operation and maintenance of the Project, which may provide that one of the parties to the contract or some other person, firm or corporation shall operate and maintain the Project as agent for all of the parties to the contract;
(f) the creation of a committee of representatives of the contracting parties, with such powers of management and supervision with respect to the Project as the contract may provide;
(g) the fixing, maintaining and altering from time to time of reasonable rates and charges for the services and facilities provided by the Project;
(h) the termination of service for nonpayment of bills; the alienation or restriction of the alienation of the undivided interest of a party in a Project, and the prohibition or restriction or partition of any Project, and such provisions shall not be subject to any provisions of law restricting covenants against alienation or partition;
(i) the respective ownership interests of the parties in the Project, their respective rights to share in the revenues to be derived therefrom, the electricity provided by and the capacity of the Project, and such ownership interests, and rights to share in revenues, electricity and capacity shall be as nearly as practicable, in proportion to the amount of money furnished and the value of property or other consideration supplied by each party in the planning, financing, developing and acquiring of the Pro j ect;
(j) procedures for the disposition of the Project or any part thereof;
(k) authorization for the exchange, interchange, wheeling, pooling and transmission of electric power and energy produced by any Project or Projects with any Utility or Utilities;
(l) the distribution of any excess electricity or output not required by any party for its own use to any Utility or Utilities;
(m) the arbitration of disputes between parties;
(n) methods for amending the contract;
(o) methods for terminating the contract ;
(p) any other matters which the parties may deem desirable in connection with the joint planning, financing, acquiring, improving, enlarging, leasing, owning, operating or maintaining any Project or Projects.

No contract entered into pursuant to the provisions of this section shall constitute a charge on the general credit or tax revenues of any Municipality in this State but shall be payable and dischargeable solely from the revenues derived by such Municipality from its interest in the Project, and if the contract so provides, also from the revenues of any electric distribution system which is owned by such Municipality and which system is furnished electricity by the Project.

Section 4. Issuance of Bonds by Eligible Participant. Each Eligible Participant is hereby authorized to issue its Bonds (a) for the purpose of financing the acquisition, construction, reconstruction, extension, enlargement, or improvement of its undivided interest in a Project or Projects, including the payment of all Project Costs in connection therewith, (b) for the purpose of refunding the principal of and interest on any of its bonds theretofore issued under this Act and then outstanding, whether or not such principal and interest shall have matured at the time of such refunding and the payment of any premiums and expenses in connection with such refunding or (c) for any combination of the above stated purposes. Any bonds issued under this section shall be made payable solely out of the revenues derived from the operation of the undivided interest of the Eligible Participant in the Project issuing the same or, if the Eligible Participant so elects, also from the revenues derived from the operation of any other electric distribution system or systems owned by it, provided such system or systems are furnished electricity by the Project. No such bonds shall constitute a charge on the general credit or tax revenues of any Municipality. Prior to the issuance of any bonds under this section, the Governing Body of the Eligible Participant shall adopt authorizing proceedings containing a description of the bonds to be issued, including the total principal amount thereof, the maximum rate of interest to be borne thereby, the time and place of payment of the principal thereof and interest thereon and any other details respecting any such bonds as the Governing Body may deem advisable and that are not in conflict with the provisions of this Act. Bonds may be issued in one or more series, may bear such date or dates, mature at such time or times, bear interest at such rate or rates, be in such denomination or denominations, be in such form either coupon or registered or both, be executed in such manner, be payable in such medium of payment at such place or places, within or without the State, be non-redeemable or subject to such terms or redemption, with or without premium, and be subject to being declared or becoming due before the maturity date thereof as may be provided by the Governing Body in the proceedings authorizing their issuance. Such authorizing proceedings shall provide for the execution and delivery of the bonds of the Eligible Participant by its officers and in the manner therein designated. Any bonds may be sold at public or private sale in such manner and from time to time as may be determined by the Governing Body of the Eligible Participant to be most advantageous. The Eligible Participant may pay all expenses, premiums and commissions which its Governing Body may deem necessary or advantageous in connection with the issuance of the Bonds. All bonds issued under this section shall be construed to be negotiable instruments, although payable solely from a specified source. Prior to the preparation of definitive bonds any Eligible Participant may issue temporary bonds, with or without coupons, exchangeable for definitive bonds upon the issuance of the latter. The authorizing proceedings may provide for the issuance of bonds under a trust indenture, which may contain such provisions as the Governing Body may choose to insert therein regarding the duties and obligations of the Eligible Participant and the trustee under such trust indenture, the rights, remedies and privileges of the holders of the bonds and the coupons thereunto appertaining and of the trustee with respect to the undivided interest of the Project or Projects out of the revenues from which the bonds are payable, and with respect to such revenues. The trustee under such trust indenture may be any trust company or bank, either within or without the State, having the powers of a trust company in the United States. To further secure the payment of the principal of and interest on bonds issued hereunder, any Eligible Participant may enter into a contract or contracts binding itself for the proper application of the moneys borrowed hereunder, for the continued operation and maintenance of its undivided interest in any Project or Projects owned or to he acquired or constructed, leased, extended, enlarged or improved or any part thereof, for the imposition, alteration and collection of reasonable rates and charges for and the promulgation of reasonable regulations respecting any service furnished from such Project or Projects, for the disposition and application of the revenues of its undivided interest therein or for any part thereof and for any other acts or series of acts not inconsistent with the provisions of this Act for the protection of the holders of the bonds and interest coupons and the assurance that the revenues from its undivided interest in such Project or Projects will be sufficient to maintain the same in good repair and good operating condition, to pay all reasonable insurance thereon, to pay the principal of and interest on any bonds payable from such revenues, and to establish and maintain such reserves and funds as may be deemed appropriate for the protection of the holders of the bonds and for the efficient operation of the Project or Projects. No bond or coupon issued pursuant to the provisions of this section shall constitute an indebtedness of any Municipality issuing the same within the meaning of any State constitutional provision or statutory limitation. It shall be plainly stated in each of the bonds issued by a Municipality hereunder that such bond has been issued under the provision of this Act, that such bond is payable solely from revenues as provided in this Act, and that such bond does not constitute an indebtedness of any Municipality within any constitutional provision or statutory limitation of the State.

Section 5. Bond Anticipation Notes. Any Eligible Participant may issue, from time to time, its negotiable notes in anticipation of the issuance of its bonds and to renew, from time to time, any such notes by the issuance of new notes, whether the notes to be renewed have or have not matured. An Eligible Participant may issue notes only to provide funds which would otherwise be provided by the issuance of its bonds. Any resolution or resolutions authorizing notes of an Eligible Participant or any issue thereof may contain any provisions which the Eligible Participant is authorized to include in any resolution or resolutions authorizing bonds and an Eligible Participant may include in any notes any terms, covenants, or conditions which it is authorized to include in any bonds. All notes shall be payable solely out of revenues which an Eligible Participant is herein authorized to pledge to its bond» and the principal proceeds from the sale of bonds in anticipation of the issuance and sale of which said notes have been issued.

Section 6. Proceeds From the Sale of Bonds or Notes. All moneys derived from the sale of any bonds or notes issued under this Act shall be used solely for the purpose or purposes for which the same are authorized, including the payment of all Project Costs and, in the case of bonds issued for the purpose of refunding outstanding bonds, any premium which it may deem necessary to pay in order to redeem or retire the bonds to be refunded. The treasurer or other officer designated by the Governing Body of the Eligible Participant shall give a receipt for the purchase price to the purchaser of any such bonds, which receipt shall be full acquittal to such purchaser and he shall not be under any duty to inquire as to the application of the proceeds of such bonds.

Section 7. Rates, fees and charges. An Eligible Participant is hereby authorized to fix and revise from time to time reasonable rates, fees and other charges for the use of and for the services furnished or to be furnished by any Project or parts thereof or interest therein owned, operated or maintained by such Eligible Participant. Such rates, fees and charges shall be so fixed and revised from time to time as to provide funds sufficient all all times (a) to pay the cost of maintaining, repairing and operating such Project or parts thereof or interest therein, (b) to pay the principal of and the interest on all bonds issued by the Eligible Participant under the provisions of this Act, as the same shall become due and payable, (c) to pay the cost of extension, enlargement, improvements and replacement to the Project, (d) to create and maintain such reserves for the foregoing purposes as may be provided in the resolution authorizing the issuance of the bonds or in an agreement securing such bonds, and (e) to make such other payments as the governing body of the Eligible Participant may determine. The Eligible Participant shall charge and collect the rates, fees and charges so fixed or revised and such rates, fees and charges shall not be subject to supervision or regulation by any commission, board, bureau, department, agency or official of the State.

Section 8. Limitation on Joint Participation. No liability incurred by a Municipality in the exercise of any power granted in this Act shall give rise to a charge on its general credit or tax revenues. No money or property supplied by any Eligible Participant for the planning, financing, acquisition, construction, operation or maintenance of any common facility shall be credited or otherwise applied to the account of any other joint owner, nor shall the undivided interest or share of any Eligible Participant in any common facility be charged, directly or indirectly, with any debt or obligation of any other joint owner or be subject to any lien as a result thereof; provided, however, the reasonable and necessary expenses of administration, operation, maintenance and repair of any jointly owned Project shall be a charge on the revenues of the entire Project.

Section 9. Officers not Liable. No officer of any Eligible Participant and no member of the governing body of any Eligible Participant and no person or persons acting on behalf of any Eligible Participant, while acting within the scope of their authority, shall be subject to any personal liability or accountability by reason of his or her carrying out any of the powers expressly or impliedly given in this Act.

Section 10. Bonds are Legal Investments; Security for Deposits. Bonds issued under the provisions of this Act are hereby made securities in which all public officers and bodies of this State, all political subdivisions, all insurance companies and associations, and other persons carrying on an insurance business, all banks, bankers, trust companies, savings banks, and savings associations, including savings and loan associations, building and loan associations, investment companies, and other persons carrying on a banking business, all administrators, guardians, executors, trustees and other fiduciaries and all other persons whatsoever who are now or may hereafter be authorized to invest in bonds or other obligations of the State may properly and legally invest funds including capital in their control or belonging to them. The bonds are also hereby made securities which may be deposited with and shall be received by all public officers and bodies of this State and all political subdivisions thereof for any purpose for which deposit of the bonds or other obligations of this State is now or may hereafter be authorized.

Section 11. The Provisions of this Act are Cumulative. The provisions of this Act shall be deemed to provide additional and alternative methods for the doing of the things authorized thereby and shall be deemed and construed to be supplemental and additional to powers conferred by other laws, and shall not be regarded as in derogation of any powers now existing. The issuance of bonds under the provisions of this Act need not comply with the requirements of any other law applicable to the issuance of bonds.

Section 12. Freedom of Eligible Participants From Public Service Commission and Other State Supervision and Control. Except as in this Act expressly otherwise provided, no proceeding, notice or approval shall be required for the acquisition of any property or Project, Projects or interest therein, or the making of any loans or the issuance of any bonds or instruments in evidence thereof or as security therefor or the exercise by an Eligible Participant of any of the powers and authorities granted in this Act, any other law to the contrary notwithstanding. Every Eligible Participant and every Project, Projects or interest therein of an Eligible Participant and the rates and charges thereof shall be exempt from all jurisdiction of, and all regulation and supervision by, the Public Service Commission.

Section 13. Exemption from Usury Laws. Every Eligible Participant issuing bonds or notes under this Act is hereby exempted from the laws of the State governing usury or prescribing or limiting interest rates, including, without limitation, the provisions of Chapter 6 of Title 9 of the Code of Alabama of 1940, as amended.

Section 14. Exemption from Competitive Bidding. All contracts made by an Eligible Participant in the exercise of any power or authority granted in this Act shall be exempt from the provisions and requirements of Act No. 217 adopted at the 1967 Special Session of the Legislature of Alabama [Title 55, Sections 506, 507, 508 to 517, Code of Alabama, Recomplied 1958 Pocket Parts], as amended, which provides for competitive bids in connection with certain contracts.

Section 15. Tax Exemption. All property acquired by any Municipality or Electric Board in the exercise of' any power granted by this Act and all income therefrom, all bonds, notes and other obligations issued by any Municipality or Electric Board under this Act and the interest thereon and all deeds, indentures and other documents executed by or delivered to any Municipality or Electric Board in connection with the exercise of any power under this Act shall be exempt from all state, county, municipal and other taxation in the State.

Section 16. Power of Eminent Domain. Every Eligible Participant is hereby granted all powers of eminent domain now or hereafter conferred on municipalities.

Section 17. Liberal Construction. This Act, being necessary for the welfare of this State and its inhabitants, shall be liberally construed.

Section 18. Severability. If any section of this Act or any part of any section, or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect any other section or the remaining part of such section or the application thereof to other persons or circumstances which can be given effect without the invalid provision or application, and to this end the provisions of this Act are sev-erable.

Section 19. Inconsistent Laws Inapplicable. All laws and parts of laws, general, local or special, inconsistent with this Act are hereby declared to be inapplicable to the provisions of this Act.

Section 20. Effective Date. This Act shall become effective upon its passage and approval by the Governor or upon its otherwise becoming a law.”

B

(1) DOES THE BILL CONTAIN MORE THAN ONE SUBJECT IN VIOLATION OF SECTION 45 OF THE CONSTITUTION ?

We answer this in the negative.

The purposes of the “single subject” requirement Const, of Ala., 1901, § 45, are generally stated as: (a) notification to the public of the nature of the pending legislation; (b) avoidance of fraud on the legislature by inadvertent passage of provisions not related to the title, and; (c) prevention of logrolling legislation. Boswell v. State, 290 Ala. 349, 276 So.2d 592, appeal dismissed 414 U.S. 1118, 94 S.Ct. 855, 38 L.Ed.2d 747 (1973). The title of a bill need not specify every provision contained. The “one subject” test of § 45 is satisfied when the bill’s provisions are all referable to and cognate of the subject of the bill. Boswell, supra; Opinion of the Justices, 275 Ala. 254, 154 So.2d 12 (1963). We are of the opinion that there is but one general subject in the bill: Authorizing joint ownership by municipalities, electric cooperatives, and electric boards, of systems and facilities for the generation, transmission, transformation, and distribution of electric power and energy. In our opinion all provisions of the bill are referable to that subject.

(2) IS THE SUBJECT OF THE BILL CLEARLY EXPRESSED IN ITS TITLE, AS REQUIRED BY SECTION 45 OF THE CONSTITUTION ?

We answer in the negative.

The general rules with respect to the “clear expression” requirement of Const, of Ala., 1901, § 45, are:

" * * * when the title is so misleading and uncertain that the average legislator or person reading the same would not be informed of the purpose of the enactment, it is insufficient. * * * ” Pillans v. Hancock, 203 Ala. 570, 572, 84 So. 757, 759 (1919).
“ ‘ * * * The title must be such, at least, as fairly to support or give a clew [clue] to the subject dealt with in the act, and unless it comes up to this standard, it falls below the constitutional requirements.’ * * *” Clutts v. Jefferson County Board of Zoning Adjustment, 282 Ala. 204, 210, 210 So.2d 679, 684 (1968). See also Ham v. State ex rel. Buck, 156 Ala. 645, 47 So.126 (1908).

The intent of these rules is that the title inform legislators and the public of the content of a bill. This is so that legislators will not be misled in voting on a bill. These are pragmatic rules, no doubt recognizing the reality that legislators do not have time to read all bills in full. They must rely, to some extent, upon the title to inform them of a bill’s provisions.

In one of the briefs filed, amicus curiae, it is stated:

“ * * * q^g tjt]e tQ tjje bjjj suffi_ ciently discloses the contents to adequately apprise the legislature and the public of the matters which it covers. Anyone reading the title will be fully informed of its subject matter and scope.”

We disagree. Section 16 of the bill grants every Eligible Participant all powers of eminent domain now or hereafter conferred on municipalities. Eligible Participants are defined as any Municipality, Electric Board, or Electric Cooperative. The bill’s title does not mention the power of eminent domain. The bill’s title does say that Eligible Participants may acquire electric systems by purchase or construction, and lease. The negative inference drawn from the title is that acquisition through eminent domain power is not provided for in the bill. However, § 45 of Const., 1901, is violated only when such an omission is misleading. Is it misleading to omit from the title a reference to the grant of the power of eminent domain to all Eligible Participants? Title 37, § 507, confers the power of eminent domain on municipalities. Title 37, § 402(18) gives the same power to Electric Boards. Thus it follows that as to these two Eligible Participants, § 16 of the bill is surplusage, and the omission from the title of reference to that power is not misleading.

Code of Ala., Tit. 18, § 33, confers on Electric Cooperatives the right

“ * * * to exercise the power of eminent domain in the manner provided by the laws of this state for the exercise of that power by corporations constructing or operating electric transmission and distribution lines or systems * * * ”

Code of Ala., Tit. 10, § 71, states in part:

“Corporations formed for the purpose of constructing, operating, or maintaining * * * electric works * * * power companies * * * may exercise the power of eminent domain in the manner provided by law.”

However, as to rights of way, Tit. 10, § 71, must be read in conjunction with Code of Ala., Tit. 10, § 75. The latter section reads in part:

“ * * * electric, power * * * companies, and all other companies formed for constructing, operating, or maintaining any work of internal improvement or public utility, may acquire by condemnation for a right-of-way for their * * * lines * * * dams * * * lands for ways and rights-of-way not exceeding one hundred feet in width * * * together with the necessary lands, other than lands for ways and rights-of-way, for the construction or installation of facilities, apparatus or equipment necessary for the operation of * * * lines * * * dams * * * ” (emphasis added)

Code of Ala., Tit. 37, § 507, contains no limitation on the width of property which may be condemned by a municipality. Therefore by Section 16 of the bill, the power of condemnation granted Electric Cooperatives is enlarged. No reference to this enlargement of the right of eminent domain is found in the title to the bill. We are of the opinion such omission contravenes Const, of Ala., 1901, § 45.

Section 9 of the bill immunizes, from personal liability, officers of Eligible Participants, members of governing bodies of Eligible Participants, and all agents of Eligible Participants for acts within the scope of their authority when carrying out any power (express or implied) granted in the bill. This expansive grant of immunity is not spelled out in the title. By reason of Jackson v. City of Florence, 9 ABR 1540 (1975), it cannot be presumed that the grant of such immunity to municipal officers and employees is mere surplusage. We are of the opinion this omission violates § 45.

The last sentence of Section 11 of the bill states:

“ * * * The issuance of bonds under the provisions of the Act need not comply with the requirements of any other law applicable to the issuance of bonds.”

The title makes no reference to this exemption. Section 10 of the bill makes these bonds “securities.” Thus the bill exempts the issuance of these bonds from the provisions of the Blue Sky Laws, Code of Ala., Tit. 53, §§ 28-29, 36-53. (Certain securities are exempt from the requirements of Tit. 53, §§ 30-35, when issued by a subdivision of the state or by regulated utilities). Moreover, the immunity from personal liability granted in Section 9 of the bill insulates those described in that section from the effect of Code of Ala., Tit. 53, §§ 28, 44. These immunities, their extent and scope, are not mentioned in the bill’s title. This omission violates § 45, Const, of 1901.

Section 12 of the bill reads:

“Except as in this Act expressly otherwise provided, no proceedings, notice or approval shall be required for the acquisition of any property or Project, Projects or interest therein, or the making of any loans or the issuance of any bonds or instruments in evidence thereof or as security therefor or the exercise by an Eligible Participant of any of the powers and authorities granted in this Act, any other law to the contrary notwithstanding. * * * ”

This exemption from proceedings, notice or approval, required by statutes, is not referred to in the title. Code of Ala., Tit. 19, sets forth the required procedures for the condemnation of lands. These include a judicial proceeding and notice to the landowner. Code of Ala., Tit. 19, §§ 4, 7, 10. Section 12 of the bill would not require compliance with those statutes. Omission of reference to this from the title violates § 45, Const., 1901.

While not requested to do so we conceive it our duty to point out that Section 12 of the bill allows acquisition of property without notice except as the Act provides. The Act does not provide for any notice. We observe that Const., 1901, § 13, provides that every person shall have a remedy “ * * * for any injury done him in his lands * * * ” by due process of law. When governmental action affects individual property rights, due process mandates' hearings such as provided in Tit. 19.

(3) DOES THE BILL VIOLATE THE PROVISIONS OF SECTION 94 OF THE CONSTITUTION?

(4) DO THE PROVISIONS OF THE BILL AUTHORIZING A MUNICIPALITY TO EXERCISE ANY ONE OR MORE OF THE POWERS, RIGHTS AND PRIVILEGES CONFERRED BY THE BILL JOINTLY OR IN COMMON WITH ONE OR MORE OTHER PARTIES, CORPORATIONS, COOPERATIVES OR AUTHORITIES, PUBLIC OR PRIVATE, TO OWN AN UNDIVIDED INTEREST IN ELECTRIC GENERATING, ’ TRANSMISSION, TRANSFORMATION AND DISTRIBUTION FACILITIES WITH SUCH OTHER PARTIES, TO ENTER INTO CONTRACTS WITH RESPECT THERETO WITH SUCH OTHER PARTIES, TO DESIGNATE ONE OR MORE OF SUCH OTHER PARTIES AS AN AGENT AND TO DELEGATE ITS POWERS AND DUTIES TO SUCH AGENT VIOLATE SECTION 94 OF THE CONSTITUTION?

We answer in the negative.

Constitution, 1901, § 94, was designed to prevent the expenditure of public funds in aid of private individuals or corporations by reason of which a pecuniary liability, a debt of the municipality, is incurred. Opinion of the Justices, 256 Ala. 162, 53 So.2d 840 (1951). Electric Boards and Electric Authorities are not political subdivisions of this State; therefore § 94 does not apply. Municipalities are subdivisions of this State. The bill authorizes municipalities to enter into joint Projects with other Eligible Participants, a Municipal Electric Authority, the State, the United States of America, any other state or agency of either of them, or any public or private corporation lawfully created. The bill specifically provides for the cost of such Projects to be financed solely out of revenues derived from the Projects. No part of the Project costs are to be a charge on the general credit or tax revenues of any municipality. For these reasons § 94 is not violated. Newberry v. City of Andalusia, 257 Ala. 49, 57 So.2d 629 (1952). Nor is § 94 violated when the transaction is between a municipality and an agency of the State. Rogers v. City of Mobile, 277 Ala. 261, 169 So.2d 282 (1964).

“When a contract of a public body is an ordinary commercial contract, with benefits flowing to both parties and a consideration on both sides, it is not a lending or credit by the public body. * * * ” Rogers, supra.

(5) DOES THE BILL VIOLATE THE PROVISIONS OF SECTION 93 OF THE CONSTITUTION ?

We answer in the negative.

The inhibitions of Const., 1901, § 93, have reference solely to the State as an entity distinct from its political subdivisions. Edmonson v. State Industrial Development Authority, 279 Ala. 206, 184 So.2d 115 (1966).

(6) DOES THE BILL VIOLATE SECTION 222 OF THE CONSTITUTION BY AUTHORIZING A MUNICIPALITY TO ISSUE ITS BONDS WITHOUT AN ELECTION OF THE QUALIFIED VOTERS OF SUCH MUNICIPALITY?

We answer in the negative.

Alabama Const., 1901, § 222, does not apply to bonds issued without an election of the qualified voters of a municipality when the bonds are payable solely out of revenues from a new project to be constructed with the proceeds from those bonds. Rogers, supra; Opinion of the Justices, 280 Ala. 692, 198 So.2d 269 (1967).

(7) DOES THE BILL VIOLATE SECTION 225 OF THE CONSTITUTION BY AUTHORIZING A MUNICIPALITY TO ISSUE ITS BONDS AND NOTES, TO ENTER INTO CONTRACTS AND TO INCUR LIABILITIES WITHOUT REGARD TO THE LIMITATION OF INDEBTEDNESS PRESCRIBED BY SAID SECTION 225?

We answer in the negative.

Bonds payable solely out of revenue from the project to be financed are not the bonds contemplated by Const., 1901, § 255, as they do not create a debt of the municipality. Newberry, supra.

(8) DO THE PROVISIONS OF THE BILL AUTHORIZING A MUNICIPALITY TO PLEDGE THE REVENUES OF ANY EXISTING ELECTRIC SYSTEM OWNED BY IT TO ITS BONDS OR NOTES ISSUED TO ACQUIRE AN UNDIVIDED INTEREST WITH OTHERS IN AN ELECTRIC SYSTEM OR FACILITY VIOLATE SECTION 225 OF THE CONSTITUTION BY PERMITTING THE ISSUANCE OF BONDS AND NOTES WITHOUT REGARD TO THE LIMITATION OF INDEBTEDNESS PRESCRIBED BY SAID SECTION 225?

(9)DO THE PROVISIONS OF THE BILL AUTHORIZING A MUNICIPALITY TO PLEDGE THE REVENUES OF ANY EXISTING ELECTRIC SYSTEM OWNED BY IT TO ITS BONDS ISSUED TO ACQUIRE AN UNDIVIDED INTEREST WITH OTHERS IN AN ELECTRIC SYSTEM OR FACILITY VIOLATE SECTION 222 OF THE CONSTITUTION BY PERMITTING THE ISSUANCE OF BONDS WITHOUT AN ELECTION OF THE QUALIFIED VOTERS OF SUCH MUNICIPALITY?

We answer in the affirmative.

Prior to the passage of Amend. CVII (107), Const., 1901, our law was clear to the effect that a pledge of income from an existing revenue producing system, owned by a municipality, to the payment of bonds to finance a new system was impermissible under Ala.Const., 1901, §§ 222, 225, unless such pledge of revenue was necessary to complete a system. Williams v. Water Works and Sanitary Sewer Board, 261 Ala. 460, 74 So.2d 814 (1954); Fuller v. City of Cullman, 248 Ala. 236, 27 So.2d 203 (1946);

Amendment CVII provides:

"Issuance of Revenue Bonds and Other Revenue Securities by Municipalities
“Revenue bonds and other revenue securities at any time issued by a municipality for the purpose of extending, enlarging or improving any water, sewer, gas or electric system then owned by such municipality shall not be deemed to constitute bonds or indebtedness of such municipality within the meaning of sections 222 and 225 of this Constitution if by their terms such bonds or other securities are not made a charge on the general credit or tax revenues of the issuing municipality and are made payable solely out of revenues derived from the operation of any one or more of such systems.”

It is argued that this amendment sanctions the provisions of the bill permitting pledge of income from existing municipal owned electric systems to payment of bonds issued to acquire an undivided interest with others in an electric system or facility. The pledge provision (Section 4 of the bill) allows a municipality, if it so elects, to pledge revenue to the payment of bonds issued to finance the system from “the operation of any other electric distribution system or systems owned by it, provided such system or systems are furnished electricity by the Project.” By this provision the bill attempts to bring the pledge within the operative ambit of Amend. CVII which allows pledge of revenues from an existing system to extend, enlarge, or improve that system and avoid the effect of §§ 222, 225, Const., 1901.

In Chamberlain v. Board of Commissioners of City of Mobile, 243 Ala. 662, 11 So.2d 724 (1943), this court upheld a pledge of Bankhead Tunnel tolls to the payment of bonds issued to make necessary improvements for the tunnel system. Since, in that case, the tolls could never become subject to the use of the city for its general purposes, or a part of its general purpose fund, without subsequent legislative action, this court, on the facts of that case, held that the pledge did not violate §§ 222 or 225, Const., 1901, even though the tunnel itself was complete.

The bill we are discussing, would authorize bonds to be issued to finance creation of a new “Project” in part owned by a municipality, its undivided interest in which might be paid for by conveyance of an already existing facility owned by such municipality. No stretch of imaginative legal reasoning could lead one to conclude that this process was an extension, enlargement, or improvement of a “then owned” municipal electric system as contemplated by Amend. CVII.

This opinion is that of the individual justices who sign it, entirely advisory and binds no one. The opinion is strictly limited to specific answers to constitutional questions within the narrow confines of those questions as posed by Senate Resolution 58 of 22 July 1975. No opinion is intended as to other constitutional questions that may be posed by Senate Bill No. 862 about which no questions were asked in the resolution.

Respectfully submitted,

JAMES H. FAULKNER

ERIC EMBRY Associate Justices

We concur in the answers to Questions (l)-(7), inclusive.

As to Questions (8) and (9) we opine that these questions should be answered in the negative — that is, the stated provisions of the Bill do not contravene either section 222 or section 225 of the Constitution in our judgment.

Amendment CVII [107] of the Constitution expressly provides that revenue bonds and other revenue securities issued by municipalities “for the purpose of extending, enlarging or improving any water, sewer, gas or electric system then owned by such municipality shall not be deemed to constitute bonds or indebtedness of such municipality within the meaning of sections 222 and 225 of this Constitution if by their terms such bonds or other securities are not made a charge on the general credit or tax revenues of the issuing municipality and are made payable solely out of revenues derived from the operation of any one or more of such systems.” [Emphasis ours.]

Under the express terms of the Bill in question [S.B. 862], no bonds issued under the Act shall constitute a charge against the general credit or tax revenues of the municipality. The bonds must be made payable solely from revenues from the interest of the municipality in the project or, at the election of such municipality, also from revenues derived from the operation of its entire electrical system. Thus, such bonds are »oi charges against the municipality’s credit.

We are of the opinion that such generating facilities, as may be planned, financed, developed, acquired, constructed, improved, enlarged, owned, operated and maintained, under the Act, fall within the ambit of Amendment CVII [107] being for the purpose of “extending, enlarging, or improving” such system or systems.

Thus, Amendment CVII [107] of the Constitution exempts revenue bonds, issued for the purpose of ‘‘extending, enlarging or improving" such systems, from the provisions of sections 222 and 225, if by their terms they are not made a charge on the general credit of the municipality but are made payable solely out of revenues from the operation of the system. The Act in question so provides.

We would add that we do not consider the case of Chamberlain v. Board of Commissioners of City of Mobile, 243 Ala. 662, 11 So.2d 724 (1943) to require a different result. To the contrary, we consider it supports our conclusion. In that case this Court held that street improvements, overpasses and underpasses constituted “extensions” of the then completed Bankhead Tunnel so as to permit financing their cost by the issuance of revenue bonds payable from tunnel revenues.

Respectfully submitted,

PELHAM J. MERRILL

JAMES N. BLOODWORTH

RENEAU P. ALMON

JANIE L. 'SHORES Associate Justices

A majority of the justices opine that the subject of the Bill is not clearly expressed in its title, as required by Section 45 of Alabama’s Constitution. We disagree with this opinion.

We realize that it is difficult to lay down a fixed and definite rule which will clearly mark the dividing line between what is and what is not violative of Section 45 [Lovejoy v. Montgomery, 180 Ala. 473, 61 So. 597 (1913)], but we think that the title in this Bill meets all constitutional requirements. These are our reasons. Since at least as early as the case of Lockhart v. City of Troy, 48 Ala. 579 (1872), where the title read, “An Act to Establish a Charter for the City of Troy, in Pike County,” this Court has held that “[t]he title need not be an index to the Act; nor need it state a catalog of all the powers intended to be bestowed.” We have not gone through all of this Court’s cases construing Section 45, but in at least two cases involving adversary proceedings, this Court held valid titles to acts which did not list or catalog that the authorities created by the acts had the power of eminent domain. In Brammer v. Housing Authority of Birmingham District, 239 Ala. 280, 195 So. 256 (1940), then Chief Justice Anderson wrote:

“As we understand, the title and main or chief subject of the act is the ‘Housing Authority Act’ and think that the other things and authority thereby conferred or provided are germane or cognate to the title subject. If the object or subject is stated generally in the title and the law embraces matter relevant and pertinent thereto and said title is not used in a restrictive sense, the details incident to the accomplishment of the object and purpose of the act will not render it obnoxious to Section 45. State v. Price, 50 Ala. 568; State ex rel. Bragg v. Rogers et al., 107 Ala. 444, 19 So. 909, 32 L.R.A. 520; Alabama State Bridge Corporation v. Smith, 217 Ala. 311, 116 So. 695; Rogers v. Garlington, 234 Ala. 13, 173 So. 372; Jefferson County v. City of Birmingham, 235 Ala. 199, 178 So. 226; Harris v. State ex rel. Williams, 228 Ala. 100, 151 So. 858; Mitchell, Judge v. State ex rel. Florence Dispensary and Powers v. Mayor and Al dermen of the City of Florence, 134 Ala. 392, 32 So. 687; Dearborn v. Johnson, 234 Ala. 84, 173 So. 864.”

More recently, in Knight v. West Alabama Environmental Improvement Authority, 287 Ala. 15, 246 So.2d 903 (1971), this Court considered the question of whether Act No. 1117, Acts, 1969, violated Section 45, because there were some powers granted the Authority in the body of the Act which were not mentioned in the title. This Court said:

“Among other provisions, Section 45 of the Constitution says that each law enacted by the legislature ‘shall contain but one subject, which shall be clearly expressed in its title.’
“The title to Act No. 1117 does not make any expressed reference to the provisions of Sections 3, 8(7) and 8(9) of the Act which set forth detailed purposes and powers of such public corporations and authorize said public corporations to render financial assistance to industries and private corporations and the provisions of Section 8(1) which authorize the public corporations to engage in works of watershed improvements.
“A lucid discussion of this constitutional provision is found in Opinion of the Justices, 275 Ala. 254, 154 So.2d 12, wherein the following language appears:
“‘(2) One of the purposes of the requirement of Section 45, supra, that the subject of a law shall be clearly expressed in the title, is to prevent surprise or fraud upon the legislature by incorporating in bills provisions not reasonably disclosed by its title, and which might be overlooked, and unintentionally approved in enacting the bill. Opinion of the Justices, 247 Ala. 195, 23 So.2d 505. Another purpose is to fairly apprise the public of the import of the legislature so they may be heard. Grayson v. Stone, 259 Ala. 320, 66 So.2d 438.
‘“(3) However, this Court is committed to the principle that this requirement as to clear expression of the subject of a bill in the title is not to b'e exactingly enforced in such manner as to cripple legislation, or is it to be enforced with hypercritical exactness, but is to be accorded a liberal interpretation. Kendrick v. Boyd, 255 Ala. 53, 51 So.2d 694; Taylor v. Johnson, 265 Ala. 541, 93 So.2d 143.
“ ‘(4) When the subject of a bill is expressed in general terms in the title everything which is necessary to make a complete enactment in regard to it, or which results as a complement of the thought contained in the general expression, is included in and authorized by it. Dearborn v. Johnson, 234 Ala. 84, 173 So. 864.’
“This Court in Yielding v. State ex rel. Wilkinson, 232 Ala. 292, 167 So. 580, held that a statute has but one subject, no matter to how many different matters it relates if they are all cognate, and but different branches of the same subject.”

In each case, the authorities were given the power of eminent domain and this grant of power was set out in the body of the Act but was not set out in the title. Consequently, we cannot agree with the views stated by the Justices that the subject of the Bill is not clearly expressed in its title.

We concur in the answers to questions numbered (1), (3), (4), (5), (6) and (7) contained in the portion of this advisory opinion signed by Justices Faulkner and Embry.

We agree with the answers to questions numbered (8) and (9) contained in that portion of the advisory opinion signed by Justices Merrill, Bloodworth, Almon and Shores.

HOWELL T. HEFLIN Chief Justice

HUGH MADDOX Associate Justice


source: Caselaw Access Project

license: Public Domain

text:
    OPINION OF THE JUSTICES.
    No. 216.
    Supreme Court of Alabama.
    Sept. 2, 1975.

      William J. Baxley, Atty. Gen. and Kent B. Brunson, Asst. Atty. Gen., and Caban-iss, Johnston, Gardner, Dumas & O’Neal and Bishop, Sweeney & Colvin, Birmingham, for amicus curiae, in support of the constitutionality of the Act.
   To the Members of the House of Representatives

State Capitol

Montgomery, Alabama

Sirs and Madam:

We are in receipt of House Resolution No. 163 which recites as follows:

“HOUSE RESOLUTION No. 163
“WHEREAS, important constitutional questions are presented by House Bill No. 1286, a copy of which is attached hereto, now pending in the Legislature of Alabama:
“NOW, THEREFORE, BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF ALABAMA that the Justices of the Supreme Court of Alabama are hereby respectfully requested to render their opinion as provided by Section 34 of Title 13 of the Code of Alabama of 1940 on the following important constitutional questions:
“(1) Does the bill contain more than one subject in violation of Section 45 of the Constitution ?
“(2) Is the subject of the bill clearly expressed in its title, as required by Section 45 of the Constitution?
“(3) Does the bill violate the provisions of Section 94 of the Constitution?
“(4) Do the provisions of the bill authorizing Municipal Electric Authorities, as public corporations, to exercise any one or more of the powers, rights and privileges jointly or in common with one or more other parties, authorities, cooperatives, corporations or utilities, public or private, to own an undivided interest in electric generation, transmission, transformation and distribution facilities with such other parties, to designate one or more of such parties as agent and to delegate powers and duties to such agent violate Section 94 of the Constitution ?
“(5) Does the bill violate the provisions of Section 93 of the Constitution ?
“(6) Does the bill constitute a special act conferring corporate powers in violation of Section 229 of the Constitution?
“(7) Do the provisions of the bill which authorize the incorporation of Municipal Electric Authorities violate Section 104(6) of the Constitution?
“(8) Does the bill violate Section 222 of the Constitution by authorizing the issuance of bonds without an election of the qualified voters of the municipalities, the governing bodies of which have authorized the organization of a public corporation, as contemplated by said bill ?
“(9) Does the bill violate Section 225 of the Constitution by authorizing the issuance of bonds and other securities without regard to the limitation of indebtedness prescribed by said Section 225 ?
“(10) Do the provisions of the bill which state the manner whereby votes of the Board of Commissioners of a Municipal Electric Authority shall be distributed violate the due process clause of 14th Amendment of the Constitution ?”

We consider your questions in the order in which they were asked:

(1) This court has observed that one of the purposes of Section 45 of the Constitution of Alabama is to prevent surprise and fraud upon the legislature by prohibiting the inclusion of measures in a bill not reflected in the title. Opinion of the Justices, 275 Ala. 254, 154 So.2d 12 (1963). But in the same advisory opinion we observed our commitment to liberally enforce this requirement so that legislation would not be unduly crippled.

Keeping this commitment in mind, we must apply the test of Section 45, i. e., “ . . . ‘ . . . whether we can find anything in the bill which cannot be referred to the subject.’ ” Lovejoy v. City of Montgomery, 180 Ala. 473, 476, 477, 61 So. 597, 599 (1913); Opinion of the Justices, 270 Ala. 38, 115 So.2d 464 (1959). Is there but one general subject which is fairly disclosed by its title? Norton v. Lush, 248 Ala. 110, 26 So.2d 849 (1946).

We are of the opinion that the constitutional requirements of Section 45 are met in House Bill No. 1286. While the provisions of the act are comprehensive and detailed, we think there is but one general subject — the creation of Municipal Electric Authorities, with the power to finance, develop, own, operate, and maintain systems and facilities for the generation and distribution of electrical power. “A statute has but one subject, no matter how many different matters it relates to, if they are all cognate, and but different branches of the same subject.” Yielding v. State, 232 Ala. 292, 296, 167 So. 580, 583 (1936). It should not be fatal that the purposes and powers of these Authorities are not specifically expressed in the title. See Knight v. West Alabama Environmental Improvement Authority, 287 Ala. 15, 246 So.2d 903 (1971). Under the liberal construction to which we are committed, House Bill No. 1286 satisfies the one-subject requirement of Section 45.

(2) Section 45 also requires that the subject of the bill be clearly expressed in its title. Thus, this court must determine whether the title of House Bill 1286 is “ . . . so misleading and uncertain that the average legislator or person reading the same would not be informed of the purpose of the enactment . . . ” Pillans v. Hancock, 203 Ala. 570, 572, 84 So. 757, 759 (1919). Moreover, “When there is fair expression of the subject in the title, all matters reasonably connected with it, and all proper agencies or instrumentalities, or measures, which will or may facilitate its accomplishment, are proper to be incorporated into the act . . . ” Lindsay v. United States Savings & Loan Association, 120 Ala. 156, 173, 24 So. 171, 176 (1897). We conclude that the title of House Bill No. 1286 has satisfied this requirement.

(3) We find no violation of Section 94, Constitution of 1901, which prohibits the authorization of:

“ . . . any county, city, town, or other subdivision of this state to lend its credit, or to grant public money or thing of value in aid of, or to any individual, association, or corporation whatsoever, or to become a stockholder in any such corporation, association, or company, by issuing bonds or otherwise.”

The Authority authorized under this bill will not be “a county, city, town, or other subdivision of the state.” In determining the application of this section to other public corporations, this court has found such corporations not to be “subdivisions” of the state. Knight v. West Alabama Environmental Improvement Authority, supra; Opinion of the Justices, 254 Ala. 506, 49 So.2d 175 (1950).

An analysis of the authorities granted to the municipalities to create an Authority does not reveal a violation of Section 94. House Bill 1286 gives municipalities the following authorities: (a) An Eligible Municipality may adopt a resolution which declares the desirability of organizing and incorporating an Authority, and authorizes the mayor or other chief executive to proceed with the organization and incorporation; (b) after such incorporation, any Eligible Municipality not already a member may become a member with the consent of a majority of the governing bodies of the then Member Municipalities; (c) Member Municipalities may withdraw from membership in an Authority in a like manner; (d) governing bodies of a majority of the Member Municipalities must, by resolution, approve amendments to the certificate of incorporation; (e) each Member Municipality appoints one commissioner to the board of commissioners; (f) a plan of dissolution of an Authority must be approved by its Member Municipalities and upon dissolution, the property of the Authority is distributed to the Member Municipalities according to such plan. We do not think that any of the above actions constitute the lending of credit, a grant of public money or thing of value or becoming a stockholder in a private corporation, association or company. See Opinion of the Justices, supra, 254 Ala. 506, 49 So.2d 175.

(4) Section 17 of House Bill 1286 is compatible with Section 94 of the Constitution. While the bill authorizes an Authority to enter into contracts with Eligible Participants, no authority is given to a city or town to enter into such contracts.

(5) Section 93 of the Constitution provides :

“The state shall not engage in works of internal improvement, nor lend money or its credit in aid of such; nor shall the state be interested in any private or corporate enterprise, or lend money or its credit to any individual, association, or corporation.”

“ . It is well established by the decisions of this Court that a public corporation is a separate entity from the State and from any local political subdivision thereof . . . and that the prohibitions of Section 93 are directed to the State and not to public corporations.” Knight v. West Alabama Environmental Improvement Authority, supra, 287 Ala. at 19, 246 So.2d at 905.

(6) and (7) Section 229 of the Constitution prohibits special acts conferring corporate powers; Section 104(6) prohibits the legislature from enacting any special, private or local law in granting a charter to any corporation. Section 110 defines a local law as “ . . .a law which applies to any political subdivision or subdivisions of the state less than the whole,” and defines a special or private law as “ . one which applies to an individual, association, or corporation.”

There is no question that this section is applicable to public as well as private corporations. See State v. Harris, 273 Ala. 374, 141 So.2d 175 (1961). Nevertheless, we find this to be a general law rather than a special or local law. This law would apply to any “Eligible Municipality” within the state, and applies to no individual, association or corporation.

(8) Section 222 of the Constitution grants the legislature the authority to pass general laws authorizing counties, cities, towns, villages, districts or other political subdivisions to issue bonds but only if first authorized by a majority vote of the qualified voters of the political subdivision.

Amendment CVIII (108) provides:

“Each public corporation heretofore or hereafter organized or created in this state pursuant to authorization or determination by any municipality or municipalities, or county or counties, or the governing body of any one or more thereof, shall for the purposes of sections 222, 224, and 225 of this constitution be deemed to be a separate entity from such municipality or municipalities, or county or counties. Bonds and other securities heretofore or hereafter issued by any public corporation so organized shall not be deemed to constitute bonds or indebtedness within the meaning of said sections even though property, whether or not capable of producing income, may have been transferred to such public corporation by any one or more of such municipalities or counties either with or without the payment of pecuniary or other consideration.” (Emphasis added)

It is, therefore, clear that the public corporation which is the subject of House Bill 1286 is not a political subdivision within the meaning of Section 222. See Smith v. Waterworks Board of City of Cullman, 234 Ala. 418, 175 So. 380 (1937).

(9) Section 225 establishes debt limitations for cities, towns, and other municipal corporations. Again, Amendment 108 would remove the public corporation which would be created by House Bill 1286 from the application of this section.

Additionally, the bonds authorized by this bill are not “bonds” within the meaning of Section 222, or “debts” within the meaning of Section 225. The bill specifically provides that “The bonds, notes and other obligations . . . shall not be payable out of any funds other than the revenues of the Project or Projects or the undivided interest therein of an Authority . . . ” Thus, these bonds are not caught by § 222 nor § 225. Newberry v. City of Andalusia, 257 Ala. 49, 57 So.2d 629 (1952).

Additionally, we observe that Amendment 107 to the Constitution of Alabama provides that:

“Revenue bonds and other revenue securities at any time issued by a municipality for the purpose of extending, enlarging or improving any water, sewer, gas or electric system then owned by such municipality shall not be deemed to constitute bonds or indebtedness of such municipality within the meaning of sections 222 and 225 of this Constitution if by their terms such bonds or other securities are not made a charge on the general credit or tax revenues of the issuing municipality and are made payable solely out of revenues derived from the operation of any one or more of such system (Emphasis added)

We are of the opinion that House Bill 1286 does not violate either Section 222 or 225. 1

(10) The Supreme Court of the United States, in Reynolds v. Sims, 377 U. S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), held that state legislatures must be apportioned on a population basis.

However, we think Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973), is more in point here. In that case, District Board managed the business of the district — whose votes were weighted according to land values. These elections escaped the application of Reynolds, supra, because the Water District did not perform the normal governmental functions and because the landowners were affected in a disproportionate manner.

We do not believe that the voting scheme outlined in Section 9 of House Bill 1286 violates 14th Amendment of the Constitution of the United States. The Supreme Court of the United States, in Reynolds v. Sims, supra, held that all state legislatures must reflect popular representation as nearly as practicable. However, that rule has not been extended to non-governing bodies. In Salyer Land Co. v. Tulare Lake Basin Water Storage District, supra, it was held that a water storage district, by reason of its special limited purpose and the disproportionate effect of its activities on landowners as a group, was an exception to Reynolds and did not offend the Constitution. In Salyer, the California statute permitted only landowners to vote in water storage district elections, and the vote in those elections was apportioned according to the assessed valuation of the land. The court found that landowners as a class were to bear the entire burden of the district’s cost, and the state could rationally conclude that they should be charged with the responsibility for its operation. The court found that the benefits and burdens to each landowner were in proportion to the assessed value of the land and that the California statute permitting voting in the same proportion was rationally based. It seems to us that Salyer permits the voting scheme provided for in Section 9 of House Bill 1286 and we answer Question 10 in the negative.

We, therefore, find that the voting scheme outlined in Section 9 of House Bill 1286 is not violative of the one-man, one-vote rule of Reynolds.

We must note that this advisory opinion is “. . . non-judicial; this for the obvious reason that advisory opinions given do not conclude or vindicate any right or remedy, result in no judgment or decree, bind no one whatsoever. [Citations Omitted]” Opinion of the Justices, 280 Ala. 692, 703, 198 So.2d 269, 280 (1967).

Respectfully submitted,

HOWELL T. HEFLIN Chief Justice

PELHAM J. MERRILL

JAMES N. BLOODWORTH

HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

ERIC EMBRY Associate Justices


text:
    OPINION OF THE JUSTICES.
    No. 217.
    Supreme Court of Alabama.
    Sept. 2, 1975.
   By Senate Resolution 89 of the Senate of the State of Alabama in 1975 Regular Session, the Supreme Court of Alabama was requested to give an advisory opinion as to whether or not House Bill 212 which pertained to the death penalty would meet the constitutional test as set out in the case of Furman v. Georgia, 403 U.S. 952.

Opinion declined.

The Senate

State Capitol

Montgomery, Alabama

Dear Sirs:

We are in receipt of Senate Resolution 89 which reads, in part, as follows:

“BE IT RESOLVED BY THE SENATE OF ALABAMA, That we respectfully request the honorable Chief Justice and Associate Justices of the Supreme Court, or a majority of them, to give this body their written opinions on the following important constitutional question which has arisen concerning the pending bill, H.B. 212.
“If enacted, would this bill meet the constitutional test as set out by the U. S. Supreme Court in the case of Furman v. Georgia, 403 U.S. 952, 91 S.Ct. 2282, 29 L.Ed.2d 863.”

Tit. 13, § 34, Code of Alabama 1940, Recompiled 1958, has been considered as privileging but not requiring the justices to give advisory opinions. Opinion of the Justices, 266 Ala. 370, 96 So.2d 752 (1957). We respectfully decline to render the requested advisory opinion for the reasons set forth below.

The U. S. Supreme Court has granted certiorari (419 U.S. 963, 95 S.Ct. 223, 42 L.Ed.2d 177) and carried over for reargument the case of North Carolina v. Fowler, 285 N.C. 90, 203 S.E.2d 803 (1974). The question presented in that case is whether North Carolina’s imposition and carrying out of the death sentence for first degree murder constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Thus, the question propounded to us by the Senate is now pending for decision before the highest court in the land whose edicts are final and binding upon all.

The case of Johnny Harris v. State, Court of Criminal Appeals, 1 Div. 623, Baldwin Circuit Court No. 6699, concerning the constitutionality of Tit. 14, § 319, Code, supra, is now on appeal to the Alabama Court of Criminal Appeals. Tit. 14, § 319, provides that “[a]ny convict sentenced to imprisonment for life, who commits murder in the first degree, while such sentence remains in force against him, shall, on conviction, suffer death.”

This court has refused to render advisory opinions in the past where it has appeared that the court would ultimately be called upon to decide the constitutionality of a materially identical act in an adversary proceeding. Opinion of the Justices, supra. Although Tit. 14, § 319, and the statute proposed by H.B. 212 are not identical, they both provide for a death penalty, and they are overlapping in their scope.

While the statutes being challenged in Fowler v. North Carolina, supra, and Harris v. State, supra, both differ in some respects from the one proposed by H.B. 212, the ultimate issue is the same— the constitutionality of the death penalty.

Moreover, we are of the opinion that a question of this importance; viz., life or death; should not be approached in the abstract. Indeed a question of this magnitude should be resolved in the context of an adversary setting, with an actual fact situation before us, fully briefed and argued to the court.

We therefore think it appropriate that we respectfully decline to render the requested opinion.

Respectfully submitted

HOWELL T. HEFLIN Chief Justice

PELHAM J. MERRILL

JAMES N. BLOODWORTH

HUGH MADDOX

JAMES H. FAULKNER

RICHARD L. JONES

RENEAU P. ALMON

JANIE L. SHORES

ERIC EMBRY Associate Justices


author: FAULKNER, Justice. BLOODWORTH, Justice

text:
    Arvil Jean LAWRENCE v. H. Jean GAYLE et al.
    SC 1386.
    Supreme Court of Alabama.
    Sept. 4, 1975.
    Rehearing Denied Oct. 2, 1975.
    Jones & Monroe, Birmingham, for appellant.
    Rogers, Howard, Redden & Mills, Birmingham, for appellees.
   FAULKNER, Justice.

Ms. Lawrence appeals from a decree of the Circuit Court of Jefferson County, dissolving a temporary injunction, and denying declaratory relief, against the mayor and city council of Warrior. We reverse.

This court held in Lawrence v. Gayle, 294 Ala. 91, 312 So.2d 385 (1975) that a city ordinance requiring a $5,000 annual license fee for retail sales of beer was invalid. After that decision, the council met and adopted an ordinance requiring a fee of $4,000. Thus, the principal issue here is the same as in the first case: Was the license fee unreasonable ?

We cannot set the fee for the license, but from the evidence, other cities and towns in Jefferson County require fees ranging from $25 to $500. It would appear that requiring a license fee in Warrior of an amount over $500 is unreasonable and confiscatory. The effect of the $4,000 fee is the same as the $5,000 fee — to prohibit the legal sale of beer and wine. We pause here to say that this court will not tolerate circumvention of its orders, under the ruse of amending the fee- schedule for selling beer and wine, one step at the time.

The City argues that Ms. Lawrence has not complied with § 2 of the ordinance requiring a written application, giving the applicant’s name, age, location of business, type of business, names of employees, police record, if any, etc. Mrs. Lawrence filed with the clerk a crude writing stating she wanted a license to sell “off-premises” beer and wine. She gave her business address and the name of her business. She also submitted her ABC license. In this particular case, this writing should have been sufficient. It is very likely that the mayor and council know as much about Ms. Lawrence and her business as she knows herself. It is true that Ms. Lawrence did not submit a fee with her application. But, here this would have been a futile gesture. In the previous case, Ms. Lawrence submitted a fee within the range of other Jefferson County cities and towns, and was turned down.

We conclude from the evidence before us, that the ordinances setting a license fee of $4,000 were to prohibit the sale of beer and wine. On the authority of Lawrence, we hold these ordinances to be invalid.

Reversed and remanded.

HEFLIN, C. J., and ALMON and EM-BRY, JJ., concur.

BLOODWORTH and ALMON, JJ., concur specially.

BLOODWORTH, Justice

(concurring specially).

I concur specially in the opinion of Justice Faulkner.

The first time this cause was before this Court, I dissented from that portion of the majority opinion (authored by Justice Jones) which held that a “justiciable controversy” existed. I expressed my opinion that no justiciable controversy then existed because: (1) Ms. Lawrence had no ABC license when she applied for a retail beer license from the city; and, (2) Ms. Lawrence had not complied with the city ordinance requiring written application under oath.

Ms. Lawrence has now secured an ABC license and has reapplied for a city license. Although I am still of the opinion that she has not fully complied with the ordinance, I now agree that it appears clear that the city will not grant her a license, irrespective of her complying with the ordinance by filing an application under oath, unless she pays a license fee of $4,000, a sum which I agree is unreasonable and confiscatory. The law does not require a futile act. Alabama Department of Industrial Relations v. Anderson, 41 Ala.App. 267, 128 So.2d 532.

It is my opinion that if Ms. Lawrence ultimately pays such reasonable license fee as may be set by the city of Warrior, she should fully comply with the ordinance requiring an application to be made under oath.

ALMON, J., concurs.

      . Lawrence v. Gayle, 294 Ala. 91, 312 So.2d 385, 392. [April 17, 1975, Rehearing denied May 22, 1975].


text:
    OPINION OF THE JUSTICES.
    No. 218.
    Supreme Court of Alabama.
    Sept. 16, 1975.
   The House of Representatives of the State of Alabama by its Resolution No. 337 of the Regular Session of 1975 requested an opinion of the Supreme Court of Alabama as to the constitutionality of certain aspects of HB No. 240, Act No. 130 of said session.

Request for opinion declined.

To the Members of the House of Representatives

State Capitol

Montgomery, Alabama

Sirs and Madam:

We are in receipt of House Resolution No. 337 which recites as follows:

“H.R. 337
“WHEREAS, important constitutional questions have arisen since the enactment of House Bill No. 240, Act No. 130, enrolled copy of which is attached hereto.
“NOW, THEREFORE, BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF ALABAMA, That the Justices of the Supreme Court of Alabama are hereby respectfully requested to render their opinion as provided by Section 34 of Title 13 of the Code of Alabama of 1940 on the following important constitutional questions:
“(1) Does the bill contain more than one subject in violation of Section 45 of the Constitution ?
“(2) Is the subject of the bill clearly expressed in its title, as required by Section 45 of the Constitution?
“(3) Does the Act violate any provision of the Constitution ?
“(4) Does-any provision of the Act' violate any provision of the Constitution ?
“(5) Is the Act or any provision thereof unconstitutional and, if so, what provision is unconstitutional?
“(6) What is the constitutional affect of said Act?
“(7) Is any provision of the Act unconstitutional ?
“(8) Is the Act in its entirety unconstitutional ?
“(9) Specifically, does that provision of the Act which forbids the members of the first Ethics Commission from serving on the commission created by said Act No. 130 in violation of the Constitution ?
“(10) Specifically, does that provision of the Act which provides for the appointment of the Ethics Commission violate the Constitution ?
“(11) Does the provision m said Act that the appointing authority exclude the Chief Justice and the Attorney General violate the Constitution ?
“(12) Does the Attorney General have the authority to declare an Act of the Legislature unconstitutional and is his opinion binding ?
“(13) Is any opinion other than that of the court legal and binding on any constitutional question?”

The scope of inquiries for advisory opinions authorized by Title 13, § 34, Code 1940, does not authorize the Justices to give opinions as to the validity of Acts which have already passed the legislature and no action of the governor is dependent on our opinion. Opinion of the Justices, 267 Ala. 110, 100 So.2d 565; Opinion of the Justices, 264 Ala. 452, 88 So.2d 778; Opinion of the Justices, 286 Ala. 156, 238 So.2d 326.

Since Act No. 130, supra, was passed by the legislature and became a law on August 7, 1975, which preceded House Resolution 337, filed with this court on September 11, 1975, we respectfully decline to answer any questions as to its constitutionality.

Respectfully submitted,

HOWELL T. HEFLIN Chief Justice

PELHAM J. MERRILL

JAMES N. BLOODWORTH

HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

ERIC EMBRY Associate Justices


author: EMBRY, Justice.

text:
    STATE of Alabama ex rel. Terrell D. HUGHES and Terrell D. Hughes, individually v. Pat HAMM et al.
    SC 1205.
    Supreme Court of Alabama.
    Sept. 18, 1975.

      William J. Baxley, Atty. Gen., and George Beck, Deputy Atty. Gen., and Julian D. Butler, Special Asst. Atty. Gen., for the State.
    Cloud, Berry Abies, Blanton & Tatum, Huntsville, for appellees.
   EMBRY, Justice.

In this appeal our decision is of necessity limited to a determination of whether the trial court correctly found that no fraud infected the transaction which was the subject matter of this litigation. We, as was the trial court, are confined to the facts and issues agreed upon by the parties in the case in making that determination.

The facts essential to an understanding of the issues presented by this appeal are as follows: During 1971 Messrs. Norman Earley, Herman Watson, Jr. and Jack Giles (partners d/b/a Realty Management Corporation) became aware of the probability that the Huntsville District Office of the Alabama Highway Department would be relocated. Watson contacted Terrell D. Hughes, a real estate broker, and employed him to locate property suitable for the District Office, to be sold to the State for such. Through an acquaintance at Beau-fait Realty Company, Hughes located property owned by Pat Hamm which appeared a suitable site for the Highway Department District Office. Hamm wished to sell and Beaufait assigned to Hughes Beaufait’s option to purchase.

On 12 April 1972, Hamm conveyed fifty acres of land to Hughes, acting for the partners. On that same date Hughes conveyed that land to State of Alabama for the situs of the Highway Department District Office. This sale was approved by Ray Bass, Acting Highway Director. As a condition for completing the purchase of this property the State required a title opinion showing good and merchantable title in Hughes. The partners obtained such an opinion from one H. Kenan Timberlake. That opinion stated that Hughes was seized of record title to subject property as of 12 April 1972. On 13 April 1972, the State paid $150,000 to Hughes in consideration for the deed executed and delivered on 12 April. After receipt of $150,000 from the State, Hughes paid Hamm $80,000 and recorded a deed from Hamm to him on 14 April 1972.

This action was initiated by a complaint filed by State ex rel. Hughes and Hughes individually, asking that the writ of quo warranto issue to Ray D. Bass, Acting Director, State Highway Department and Roy Sanders, Comptroller, State Finance Department (upon Sanders’ retirement, Fred Zeigler became comptroller and was substituted for Sanders as a party to this action). The complaint also named as defendants, Pat Hamm and wife Martha Hamm and Louis K. Beaufait d/b/a Beau-fait Realty Company, but as to them plaintiff asked for no relief. The writ, directed to Bass and Sanders, was issued. As to Bass it directed that he appear and show by what legal authority he contracted for and purchased the property from Hughes for the State Highway Department. As to Sanders; by what legal authority he, in behalf of the State, paid Hughes for the property.

The complaint alleged in substance that the Attorney General of Alabama had held numerous press conferences suggesting, by “insinuation and innuendo,” that the sale and purchase of the property was fraudulent or without proper legal authority; that the Attorney General had failed or omitted to begin any legal proceedings on behalf of the State, criminal or civil, to redress any alleged wrongs. A declaration was sought that the sale and purchase was valid and entered into under proper legal authority.

Following defendants’ responsive pleadings, Hughes added Watson, Earley and Giles as parties plaintiff, alleging, in substance, their subjection to the same adverse “insinuation and innuendo,” as he, without institution of criminal or civil proceedings to redress any wrongs.

At this point in the proceedings the Attorney General, on behalf of the State, filed a cross-claim against Hughes, Watson, Earley and Giles. This cross-claim alleged that these plaintiffs conspired to defraud the State by misrepresenting the true value of the property and further concealed that true value by securing a title opinion showing the record owner of the property to be Hughes at the time the opinion was rendered. The cross-claim sought compensatory damages of $100,000 and punitive damages of $100,000.

After the filing of the cross-claim several pretrial hearings were held and a great deal of discovery was had by the adverse parties. The court issued three pretrial orders. Embodied in the second order is the following:

“8. The parties agree that the issues to be determined under the Cross-Claim of the State of Alabama are as follows:
“(A) Did Hughes, Giles, Watson and Earley, either jointly, separately or severally, have a duty to divulge or make known to the State of Alabama what purchase price they, or any of them had paid or were paying for the property that was being conveyed to the State?
“(B) Did the State of Alabama suffer any actionable detriment or incur any actionable damage against any or all of said parties as a proximate consequence of the failure or omission on the part of said parties to divulge and make known to the State of Alabama what value or consideration had been given in the purchase of said tract of land ?
“(C) Was the failure or omission in the aforesaid title opinion furnished to the State of Alabama to accurately reflect that the deed conveying the property from Hamm to Hughes was not a matter of public record but that the same was held in escrow as aforesaid an actionable misrepresentation on the part of Hughes, Giles, Watson and Earley?
“(D) Was the actual knowledge of the aforesaid Mr. Smith and Mr. Camp, who were employees of the State of Alabama, sufficient knowledge so as to put the State of Alabama on notice as to the recorded option from Hamm to Beaufait and as to the contents thereof ?”

Subsequently, plaintiffs/cross-defendants moved for summary judgment on the main claim and on the cross-claim on the ground there was no genuine issue as to any material fact and they were entitled to judgment as a matter of law. This motion was based on all of the discovery taken in the case by each of the parties. The discovery consisted of fourteen depositions, two sets of requests for admissions and answers thereto, three sets of interrogatories and answers, and numerous other documents submitted upon requests for production. The third pretrial order stated:

“9. That the depositions, answers to interrogatories, admissions, documents submitted in response in (sic) [to] motion to produce, and all such evidence and documents on file and on record in this cause (all of the same being hereinafter referred to as ‘the record’) reflect and reveal all pertinent and material evidence that the State of Alabama has in support of its Cross-Claim in this cause, and that additional answers to interrogatories would not reveal nor reflect any additional material evidence herein, and that additional answers to interrogatories would be consistent with the now existing record in this cause, and the State of Alabama shall not be required to make any additional answers to interrogatories based upon this stipulation and order.”

As we have seen, the motion for summary judgment on the cross-claim was submitted, by agreement of the parties, to the court on only the four issues set out in the second pretrial order, (8.. (A), (B), (C), (D)), supra. By agreement of the parties the court was to consider only the evidence contained in the discovery materials and on file in the action as stated in 9 above.

With the case in this posture, our judgment is the same as that of the trial court —summary judgment was properly granted plaintiffs/cross-defendants. The issues to be determined, as agreed upon, were so narrow that summary judgment as a matter of law was correct. To demonstrate there is no genuine issue as to any material fact concerning the agreed-upon issues in this case, we will deal in turn with each of the issues as set out in the pretrial orders.

Under the agreement of the parties framing the issues to be determined, posed as questions 8. (A), (B), (C) and (D) in the second pretrial order, the answer to 8. (A) is no. There was no duty, as a matter of law, upon the sellers to divulge to the purchaser the price to be paid by them for the property being sold to the State — the purchaser. There was no special relationship between the parties nor facts creating such a duty, in the absence of which no duty exists.

Reduced to its essential and material allegations the substance of the cross-claim charged plaintiffs/cross-defendants with conspiring to defraud the State of Alabama by the false representation that the value of the site sold to the State was $150,000 when in fact it was substantially less; the representation was relied upon by the State and it paid $150,000 for that site to its damage; the alleged false representation was material and made with intent to defraud. Additional allegations were to the effect that material facts were concealed from the State in connection with the alleged false representation; those alleged material facts were in reality one only, the concealment of the price to be paid by cross-defendants for the property to be sold by them to the State.

In truth, then, the ultimate material fact to be determined is whether the property in question, on the record before the trial court under the issues framed by agreement, is shown to have a value equal to that which was paid for it—$150,000.

The stipulations between the State and cross-defendants Hughes, Giles, Watson and Earley found in the second pretrial order contains the following:

“That the State of Alabama, as of this date, has no knowledge or evidence that Hughes, Giels (sic), Watson and Earley, either collectively, separately or severally, made any statements or representations, either orally or in writing or in any other manner, to anyone as to the value or reasonable worth of the real property in question; other than the price they were asking it is stipulated that the State of Alabama shall have the opportunity to make known unto the Court and to add to this pre-trial order any such information or evidence that is discovered or brought to the attention of the State of Alabama in conjunction with the depositions that the State has scheduled on November 13 and 14, 1973.”

No evidence was elicited following this pretrial order which demonstrated the existence of a genuine issue of fact that misrepresentations had been made by these parties or either of them as to the value of the real property in question. The failure to divulge the consideration to be paid by them bore no relationship to the value of the property as established by the two appraisals furnished the State, as required by it; both in evidence, both setting the value at $150,000 or more, each made by an appraiser whose qualifications were not challenged. Without dispute the State relied upon the one made by the appraiser selected by it.

“ * * * It appears that separate appraisals were rendered to the Commission by these appraisers before the purchase was completed. There is no contention of wrongdoing on the part of these appraisers. * * *
“ * * * value is a matter of opinion usually inexact in the conclusions arrived at by different witnesses, and what conscientiously may be the opinion of one witness as to value, equally may be the dilemma of another. * * * ” State ex rel. Baxley v. Givhan, 292 Ala. 533, 536, 537, 297 So.2d 357, 360 (1974).

It results that the answer to 8. (B) is likewise, no.

Since the material fact crucial to deciding the correctness of the ruling of the trial court is the value of the property, vis-a-vis the price paid for it, then escrow of the deed from Hamm to Hughes could be no actionable misrepresentation or concealment on the part of Hughes, Giles, Watson and Earley as to value of the property. There again, the question was, could that lack of public record change the established value of the property as shown by the appraisals utilized by the State in arriving at fair value paid for such property? It could not, therefore the answer to issue 8. (C) is, no.

The knowledge possessed by Smith and Camp (employees of the State), if any, of the recorded option from Hamm to Beaufait is no evidence of value of the property, the material fact upon which the correctness of entry of summary judgment rests. Under the agreed issues and the evidence in support of the motion for summary judgment no genuine issue was made of that sole material fact; 8. (D) was an immaterial issue.

A careful reading of the several pretrial orders, the motion for summary judgment and renewed motion for summary judgment, together with the findings and judgment in this case, makes clear that adjudication was had of the issues as framed, presented both by the original claim and cross-claim.

Lest there be concern that the judgment of the lower court failed to adjudicate the rights or liabilities of fewer than all the parties and therefore that judgment not be final, ARCP 54(b), we should point out what became of original defendants, the Hamms and Beaufait, during the course of the proceedings below. As previously mentioned, the original complaint did nothing other than name them as parties defendant without demanding any relief of them or even inferentially ascribing to either of them any conduct which would entitle that relief be exacted of them. Beginning with the first of the several pretrial orders it is apparent that there, and thereafter, the adversary litigants; Baxley, as the State, versus Hughes, Earley, Watson and Giles, cross-defendants, so framed the issues as to de facto dismiss the Hamms and Beaufait as parties to the action.

There was no reversible error in the judgment entered on motion for summary judgment.

“While it is clear that courts can and should intervene for the protection of the public in instances where there is fraud, corruption, or bad faith — the equivalent of fraud (citations omitted), and should vacate any contract of the State that is the product of actual fraud (citations omitted), the record here does not make out a genuine issue of fact as to a conspiracy or fraud, and we think it refutes the State’s contention * * * ” Givhan, supra, 292 Ala. at 536, 297 So.2d at 359.

The judgment was dispositive of the issues as framed by the parties to this appeal and since under the evidence upon which the motion for summary judgment was submitted there was no genuine issue as to any material fact — the movants/cross-defendants were entitled to judgment as a matter of law. Herricks v. Mutual Life Insurance Company of New York, a Corp., 294 Ala. 446, 318 So.2d 683 (1975).

Affirmed.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.