By direction of the court, the opinion was prepared by McCLELLAN, J. The state, on the relation of Fox, brings this proceeding in quo warranto to determine Hooper's (appellant's) eligibility for appointment by the Governor to hold and serve in the office of jury commissioner for Marshall county (Acts 1909, p. 305 et seq.). The court below overruled demurrer to the petition and awarded relief, deciding that Hooper was ineligible for the office mentioned.
Section 2 of the act approved August 31, 1909 (Acts, p. 306) provides that —
"Every person appointed to the office of jury commissioner shall be, at the time of his appointment, a qualified elector * * * of the county."
The ground of Hooper's averred ineligibility to this office is that he had not paid poll taxes for the years "1918 to 1920, inclusive," which was necessary to his qualification as an elector at the time of his appointment (Graves v. Eubank,205 Ala. 174, 87 So. 587), unless the "Soldiers and Sailors Poll Tax Exemption Amendment" to the Constitution of Alabama, exempting some only of the soldiers and sailors from payment of poll taxes during a period expiring September 30, 1923, operated to exonerate Hooper from the duty to pay such poll taxes as a condition to his qualification as an elector. That amendment reads:
"Sec. 194 1/2. (a) The payment of the poll tax mentioned in the Constitution of Alabama shall not be required of any person who served in the military or naval service of the United States for a period of not less than four months between January 1, 1917, and November 11, 1918, and who has been or who may be honorably discharged from said service and who was a qualified elector, except as to payment of poll taxes, at the time he entered said service, or who has since become such qualified elector, except as to payment of poll taxes. Any such person is exempted from the payment of all poll taxes until September 30, 1923.
"(b) Certificates of exemption from payment of such poll taxes shall be issued to persons entitled thereto under regulations prescribed by the Governor." See Laws 1919, p. 724.
The petition asserts that the "Soldiers and Sailors Poll Tax Exemption Amendment" never became a part of the Constitution of Alabama, because the Constitution (section 284) required the Legislature, as an entity, to appoint the day on which the election upon proposed amendments should be held, and the Legislature, in violation of the constitutional mandate, undertook, through section 2 of the act proposing this amendment, to delegate or remit the discharge of this constitutionally imposed duty to the Governor of Alabama. The court below held that the amendment never became a part of the Constitution, and so for the reason averred in the petition. This decision was correct under the apt authority of Johnson v. Craft, 205 Ala. 386, 87 So. 375, in which all material, pertinent inquiries are fully considered and stated, avoiding the necessity or desirability for repetition at this time. The question thus made has recently received, in Johnson v. Craft, supra, the fullest consideration by this court. The question there was argued at the bar by thoroughly capable attorneys. It was further and more minutely discussed in elaborate briefs of the respective counsel. After this court had delivered its judgment in that *Page 373 cause and had set down in the original opinion the basis for its conclusion, an application for rehearing was filed for the State Highway Commission. In support of the application for rehearing additional eminent counsel were called in, and contributed to the further discussion of the question, this time with the opportunity and advantage of the definitely stated grounds upon which this court rested its conclusion that the "Road Bond Amendment" had not become a part of the Constitution because the stated, inescapable mandate of the fundamental law had not been observed by the Legislature in appointing the day for election upon the proposed amendment. Const. § 284; Collier v. Frierson, 24 Ala. 100; Johnson v. Craft, supra.
This recital of the exhaustive character of the consideration and reconsideration accorded the same question in Johnson v. Craft, supra, is made in view of the contention in the printed brief filed for this appellant that a new factor, essential to a sound construction or interpretation of section 284 of the Constitution, is presented on this appeal — a factor that, it is asserted, was not presented or considered on the appeal of Johnson v. Craft. Referring to section 284 of the Constitution, the suggestion is that where an election on a proposed amendment to the Constitution is "held upon the next general election" day, such an election would be held on "a day appointed by the Constitution itself"; this concrete statement being resultant from the avowed view that section 284 itself alternatively appoints the next general election (occurring not within three months after adjournment, we interlard out of deference to another limitary provision of section 284) as the day for election on a proposed amendment to the Constitution. In terms, section 284 refutes the basis for and the result of the interpretation upon which the stated proposition rests. It is therein provided that the Legislature (as an entity, not in its lawmaking capacity — Johnson v. Craft) shall appoint the day on which the election shall be held, and the Constitution of 1901 nowhere contains a provision itself appointing a day for such election, either on a day coincident with the "next general election" or otherwise. The preceding Constitution of 1875, superseded and materially changed by the Constitution of 1901, did, in section 1 of article 17, require elections on proposed amendments to be held "at the next general election which shall be held for Representatives." Johnson v. Craft, supra. The present Constitution annulled that provision of the Constitution of 1875, and expressly placed upon the Legislature, as a distinct entity, the unavoidable, nondelegable duty to appoint the day for such election, either a day coincident with the next general election (occurring "not less than three months after the final adjournment" of that session) or "another day" therefor. So far as elections (other than those on proposed amendments) are concerned, section 190 of the Constitution of 1901, instead of itself defining or appointing the time therefor, expressly commits that service to the Legislature in its lawmaking capacity in these terms:
"The 'Legislature shall pass laws * * * to regulate and govern elections.' " Johnson v. Craft, supra.
As an abstract proposition, the stated insistence cannot be accepted. In the present instance the "Soldiers and Sailors Poll Tax Exemption Amendment" was not voted upon on a general election day, but on the 29th day of December, 1919 — a day chosen by the Governor to whom the Legislature had, in violation of the organic law, undertaken to delegate that authority in these words, "It shall be the duty of the Governor to fix the date of said election * * *" — terms identical with those employed in section 4 of the act proposing the submission of the "Road Bond Amendment," quoted in the statement of the case of Johnson v. Craft.
It is here contended, as it was in support of the application for rehearing in Johnson v. Craft, that it is now too late to invoke judicial inquiry into the validity of this amendment — this because, it is asserted, all departments of the state have recognized this amendment as a part of the Constitution of this state. In response to the application for rehearing in Johnson v. Craft, the like contention was considered and adversely decided. The reasons and authority there set down apply with like concluding effect to the cause now under consideration. The decision of this court in Cornelius v. Pruet. 204 Ala. 189, 85 So. 430, in construction of the "Soldiers and Sailors Poll Tax Exemption Amendment," did not involve the validity of this proposed amendment. The only question there presented was that stated in the first paragraph of the opinion — a question in no sense referable to the constitutional objection to validity now presented. So, this court has not before decided any question relating, even, to the validity of the "Soldiers and Sailors Poll Tax Exemption Amendment." The only method whereby the Constitution of Alabama may be amended is the method prescribed therein. Collier v. Frierson, supra. No provision is made therein for its amendment through either public or private acceptance, acquiescence, or consistent action. No more than other departments or agencies of the state has this court any power or authority whatsoever to sanction, recognize, or enforce an amendment that has not been formulated, submitted, and adopted as the Constitution commands as conditions precedent to an *Page 374 amendment's becoming a part of the Constitution. Author, supra. Support of the Constitution is enjoined by oath (Const. § 279); and among the Constitution's provisions for its own amendment there is not even an intimation that the failure to observe its commands can at any time be condoned, or that the universal acceptance of the product of its violation can anywhere, at any time, operate to impress legality upon or impart validity to an effort to amend the organic law that was originally invalid. Any other principle would recognize the efficacy of a method of amendment of the Constitution not contemplated by that instrument. "The Constitution may be set aside by revolution, but it can only be amended in the way it provides." McCreary v. Speer, 156 Ky. 783, 162 S.W. 99. Such is the obvious doctrine of Collier v. Frierson, supra, in the great preservative light of which several of our Constitutions have been since ordained.
It is suggested in brief for appellant that now to hold invalid the "Soldiers and Sailors Poll Tax Exemption Amendment," after persons within its exemption have voted in intervening elections in reliance upon the validity of the poll tax exemption thereby contemplated, would subject those so voting to criminal prosecution or penalty for "illegal voting." This suggestion is wholly ill founded. Such voters did not offend the statutes against "knowingly" casting illegal votes, the invalidity of the proposed amendment having been adjudged subsequent to the casting of their votes.
The judgment was well rendered, the amendment in question never having become a part of the Constitution of this state; and hence the appellant was not exempt from the voluntary payment of poll taxes as a condition precedent to his qualification as an elector. Graves v. Eubank, 205 Ala. 174,87 So. 587 et seq.; Const. § 178, 194. He was not, therefore, a qualified elector at the time of his appointment as jury commissioner and, in consequence, was ineligible for the appointment.
The judgment is affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN, SAYRE, SOMERVILLE, and MILLER, JJ., concur.
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