The opinion
I fully concur in the opinion of Mr. Justice BROWN touching the validity of the drainage amendment to the Constitution. This on the authority of Jones v. McDade, 200 Ala. 230 , 75 So. 988 , a well-reasoned opinion. A comparison of the Montgomery amendment, there considered, with the matter printed on the ballot, discloses the ballot was far more omissive than in this case.
The printed matter on the ballot, appearing on page 237 of the opinion (pages 994 and 995 of 75 So.), contained two things only: (1) That the judge of probate, sheriff, tax assessor, and tax collector of Montgomery will be placed on salaries. (2) That the fees collected by them shall be turned into the county treasury.
As pointed out in the opinion, page 237 of 200 Ala. ( 75 So. 988 ), the amendment extended the power of the Legislature to other county officers not named on the ballot. The amendment further empowered the Legislature to go back to the fee system. It expressly provided for certain clerkships and their salaries. It provided for certain expense allowances, wholly distinct from salaries.
So, if we look to the contents of the ballot prescribed in the act submitting the drainage amendment, it was entirely sufficient under the decision in Jones v. McDade, supra.
But, as pointed out by Mr. Justice BROWN, the case of Jones v. McDade expressly holds section 285 self-executing as to the form of ballot, that the duty of compliance is on the officers preparing the ballot, and that any insufficiency in the contents of the ballot as prescribed in the submission action is immaterial if the ballot in fact used carried the matter prescribed by section 285 of the Constitution. The majority opinion in the present case is in direct conflict with Jones v. McDade on this point. I consider the former case, not the present decision, supported by sound reason as well as authority.
I further concur in the decision holding the drainage act constitutional and valid. However, I adhere to the opinion of the justices, cited, that the provision for a sea wall in the drainage amendment does not affect or modify section 106, relating to local legislation; that a sea wall bill under the amendment is a local bill, and must be enacted in conformity to section 106.
I therefore concur in the holding that the Drainage Act does not authorize the sea wall; that the probate court was without jurisdiction, and no appeal could give the circuit court jurisdiction. The writ of prohibition is proper, and I concur in such holding.
I consider a decision on questions going to appeals under the Drainage Act unnecessary, and express no opinion thereon.