SEE, Justice.
This application for rehearing challenges the propriety of the Chief Justice's appointment of a Special Justice following a Justice's recusal in the appeal. Because the Chief Justice appropriately exercised the powers granted to him by the Judicial Article of the Constitution of Alabama of 1901, we deny the application.
Factual and Procedural History
E.B. McClain, the Alabama Wholesale Distributors Association, W.L. Petrey Wholesale Company, City Wholesale Grocery Company, Tobacco Post LLC, and Charles Lee Rackley, Jr. (collectively "McClain"), brought the underlying action. They challenged several municipal ordinances that impose a tax on tobacco products sold within the city limits of the cities of Bessemer, Birmingham, Fairfield, Homewood, Hoover, Hueytown, Mountain Brook, Trussville, and Vestavia Hills. McClain argued that these ordinances are invalid because they tax tobacco products in violation of Act No. 414, Ala. Acts 1947. The trial court found that the municipal ordinances violate Act No. 414. The cities of Bessemer, Homewood, Hoover, Hueytown, Mountain Brook, Trussville, and Vestavia Hills appealed.
The Act provides, in pertinent part:
"SECTION 13. Upon this act becoming effective or operative in any county, every then existing ordinance of every municipality within such county which levies or imposes a license tax on tobacco products payable by purchase and affixation of stamps shall be, ipso facto, repealed to the extent that it levies or imposes a license tax on tobacco products payable by purchase and affixation of stamps, and no municipality within such county shall have power or authority to re-enact or pass any ordinance which levies or imposes [a] license tax on tobacco products payable by purchase and affixation of stamps so long as this act is operative in such county."
In an opinion issued on January 13, 2006, this Court reversed the judgment of the trial court in a 5-4 decision, in which all sitting Justices voted. McClain applied for a rehearing and filed a motion seeking the recusal of Justice Tom Parker, one of the Justices who had concurred in the majority opinion on original submission. In response to the motion, Justice Parker recused himself from consideration of the application for a rehearing in order to avoid "the appearance of evil." City of Bessemer v. McClain, [Ms. 1031917, July 28, 2006] ___ So. 2d ___, ___ (Ala. 2006) (opinion issued on rehearing) (recusal statement of Parker, J.). Because Justice Parker's recusal left an evenly divided Court, Chief Justice Nabers appointed Judge Tommy Bryan of the Alabama Court of Civil Appeals as a Special Justice for deliberations on the application for a rehearing.
On rehearing, this Court on July 28, 2006, granted the application for rehearing and substituted an opinion affirming the judgment in part, vacating the judgment in part, and remanding the cause with instructions. The Court affirmed the trial court's judgment declaring invalid the ordinances adopted by the cities of Bessemer, Hoover, and Hueytown because they violate Act No. 414. Based on its conclusion that venue in the Bessemer Division was improper as to the cities of Homewood, Mountain Brook, Trussville, and Vestavia Hills, the Court vacated the trial court's judgment as to those cities and remanded the case with instructions to dismiss the claims against those cities or to transfer those claims to the Birmingham Division of the Jefferson Circuit Court. Special Justice Bryan concurred in the 5-4 opinion on rehearing, which reversed the holding of the original opinion that the ordinances did not violate Act No. 414, Ala. Acts 1947.
Even without Special Justice Bryan's vote, the Court had a majority on the issue of venue and on the holding that the Alabama Taxpayer Bill of Rights provided no administrative remedies the plaintiffs had to exhaust before they could bring an action in court challenging the ordinances. ___ So. 2d at ___.
In this second application for a rehearing, Bessemer, Hoover, and Hueytown ("the Cities") argue that the manner in which the Chief Justice appointed Special Justice Bryan violates a constitutional and statutory scheme that empowers the Governor alone to appoint a Special Justice to serve on this Court in the event of an evenly divided Court. We overrule the application.
Analysis
The Judicial Article of the Constitution of Alabama of 1901 was amended in 1973 to repeal the original Article VI and to create the Unified Judicial System of the State of Alabama. Section 149 of Article VI, Ala. Const. of 1901 (Off. Recomp.), establishes the Chief Justice of the Supreme Court of Alabama as the administrative head of the State's judicial system. The Judicial Article provides that, in that capacity, the Chief Justice "may assign appellate justices and judges to any appellate court for temporary service and trial judges, supernumerary justices and judges, and retired judges and retired appellate judges for temporary service in any court."
Section 149 of Article VI is often referred to in cases as § 6.10, Amend. No. 328, Ala. Const. 1901, and as Amendment No. 328.
The Cities argue, however, that this constitutional provision was not intended to upset the preexisting statutory scheme, in which the Governor has the sole authority, in cases when the Court is evenly divided because of a Justice's recusal, to appoint a Special Justice. Section 12-2-14, Ala. Code 1975, provides:
"When by reason of disqualification the number of judges competent to sit in a case is reduced to eight or to six and there is equal division among them on any question material to the determination of the case, the fact shall be certified by the Chief Justice or, when he is disqualified, by the judges sitting to the Governor, who shall thereupon appoint a member of the bar of the Supreme Court to sit as a judge of said court in the determination of said case. Similarly, when by reason of disqualification no one of the judges is competent to sit in a case or the number is reduced below six, the fact shall be certified by the Chief Justice, if he is competent to sit, or, if not, by the judge or judges sitting, or, if no one is competent, by the clerk of the court to the Governor, who shall thereupon appoint members of the bar of the Supreme Court to constitute a special court of seven members for the consideration and determination of such case."
The Cities argue that before ratification of the Judicial Article in 1973, "it was clear that Section 12-2-14 vested the Governor with the authority to appoint special justices[, and] [t]he Supreme Court has long followed this procedure where disqualification of justices required the appointment of special justices." Appellants' brief in support of application for rehearing at 3. For instance, in Johnston v. Alabama Public Service Commission, 287 Ala. 417, 422, 252 So. 2d 75, 79 (1971), when a sitting Justice's recusal resulted in a 4-4 division, the Governor appointed a Special Justice to hear the case.
The people of the State of Alabama, however, ratified the new Judicial Article in 1973. The Cities recognize that, since that time, the Chief Justice has consistently used the powers granted to him by Art. VI, § 149, as the administrative head of the court system to appoint Special Justices in the event a recusal left the Court evenly divided. They also correctly point out that, "in no reported decision has the Chief Justice's authority to appoint a special justice ever been challenged or decided." Appellants' brief at 5.
The Cities argue that interpreting § 149 of the Judicial Article to allow the Chief Justice to appoint a Special Justice in the instant case "would lead to a direct conflict between the `Judicial Article of the Alabama Constitution and Section 12-2-14 of the Alabama Code.'" Appellants' brief at 8. They contend that, given the presumption of validity accorded to legislative acts, this Court should not construe § 149 as invalidating § 12-2-14, Ala. Code 1975.
It is true that, "`[i]n passing upon the constitutionality of a legislative act, [the Court] uniformly approach[es] the question with every presumption and intendment in favor of its validity, and seek[s] to sustain rather than strike down the enactment of a coordinate branch of the government.'" McInnish v. Riley, 925 So. 2d 174, 178 (Ala. 2005) (quoting Alabama State Fed'n of Labor v. McAdory, 246 Ala. 1, 9, 18 So. 2d 810, 815 (1944) (emphasis omitted)). However, "[w]hen the Constitution and a statute are in conflict, the Constitution controls. . . ."Parker v. Amerson, 519 So. 2d 442, 446 (Ala. 1987).
The Cities suggest that § 149 may be read in harmony with § 12-2-14 in the following manner:
"First, § 12-2-14 vests the authority to appoint special Supreme Court justices with the Governor. . . . Section 12-1-14 gives the Supreme Court the authority to appoint to temporary service special judges in the Alabama lower courts. Adopting an interpretation of Judicial Article Section 149 that allows the Chief Justice to appoint special judges and justices for all of the lower courts in Alabama, while preserving the Governor's authority to appoint special justices for the Supreme Court in cases such as the instant case, would allow Art. VI, Section 149 and Ala Code §§ 12-1-14 and 12-2-14 to coexist without conflict."
Appellants' brief at 8-9. "We must afford the Legislature the highest degree of deference, and construe its acts as constitutional if their language so permits." Monroe v. Harco, Inc., 762 So. 2d 828, 831 (Ala. 2000). In this case, the Cities' attempt to harmonize the Constitution with the statute is not permitted by the language of the respective text of § 149 and § 12-2-14.
The Judicial Article states that "the chief justice may assign appellate justices and judges to any appellate court. . . ." Art. VI, § 149. "`In construing a constitutional provision, the courts have no right to broaden the meaning of words used and, likewise, have no right to restrict the meaning of those words.'" This Court is "`not at liberty to disregard or restrict the plain meaning of the provisions of the Constitution.'" City of Birmingham v. City of Vestavia Hills, 654 So. 2d 532, 538 (Ala. 1995) (quoting McGee v. Borom, 341 So. 2d 141, 143 (Ala. 1976)). Thus, we cannot adopt an interpretation of § 149 of the Judicial Article that requires the Court to ignore words in the constitutional scheme. The Cities' attempt to harmonize § 149 and § 12-2-14, suggesting "an interpretation of Judicial Article Section 149 that allows the Chief Justice to appoint special judges and justices for all of the lower courts in Alabama," simply ignores the fact that the Supreme Court of Alabama is an appellate court and that it is the only court to which a "special justice" would be assigned. See Ala. Const. of 1901, Art. VI, § 140(c) (Off. Recomp.) ("The supreme court shall have such appellate jurisdiction as may be provided by law."). To the extent that § 12-2-14 would conflict with the Alabama Constitution and require the Chief Justice to step aside and to allow the Governor to appoint Special Justices, the statute does not control.
Section 149 of the Constitution is phrased in permissive terms; it thus grants the Chief Justice the power to assign Special Justices to the appellate courts, but it does not mandate that he do so. Section 12-2-14, on the other hand, is phrased in mandatory language. The statute confines the power of the Chief Justice to assign, requiring the Chief Justice to certify the fact of a divided Court to the Governor so that the Governor can make the appointment of the Special Justice. Section 12-2-14, in effect, mandates that the Chief Justice step aside and not exercise his constitutional appointment powers. It is not possible to square the grant of power from the Constitution, which, without limitation, allows the Chief Justice to appoint Special Justices to any appellate court, with an interpretation of § 12-2-14 that limits the Chief Justice's ability to exercise that power.
Furthermore, this Court has consistently used the Chief Justice's constitutional powers to assign Special Justices to temporary service on this Court. Apparently, the case of Bowling v. Pow, 293 Ala. 178, 301 So. 2d 55 (1974), represents the first instance in which a Chief Justice exercised these constitutional powers. Following the recusal of three Justices, Chief Justice Heflin assigned Judge Leigh Clark, a supernumerary circuit judge, to serve temporarily as a Special Justice of the Supreme Court "under the provisions of Section 6.10 [now § 149] of the new Judicial Article." 293 Ala. at 188, 301 So. 2d at 64-65. The Court, in a per curiam order following the main opinion, held that an assignment under § 6.10 of Amend. No. 328 (now § 149) "is without limitation as to duties and functions and that under such assignment a supernumerary circuit judge has the authority to vote on cases before the court." 293 Ala. at 188, 301 So. 2d at 65. Five Justices of the Supreme Court concurred with this per curiam order, legitimating the separate opinion of the 4-3 majority written by Special Justice Clark. Id.
In Duncan v. Johnson, 338 So. 2d 1243 (Ala. 1976), the Chief Justice and all Justices of the Court recused themselves. Chief Justice Torbert, "pursuant to Section 6.10 of Constitutional Amendment 328," temporarily appointed a Special Supreme Court, headed by Supernumerary Circuit Judge Clark as Special Chief Justice, to decide the case. 338 So. 2d at 1244 (reporter of decisions' note regarding recusal). A few years later, in Ex parte State of Alabama, 405 So. 2d 932 (Ala. 1980), Chief Justice Torbert recused himself. However, he transferred his authority to appoint Special Justices to the senior Associate Justice of the Supreme Court pursuant to § 12-2-5, Ala. Code 1975 (authorizing the senior Associate Justice to perform the Chief Justice's duties in the event the Chief Justice is unable to perform those duties). Justice Hugh Maddox, "pursuant to the authority contained in the provisions of Section 6.10 [now § 149] of the Judicial Article . . . and § 12-2-5," assigned the Honorable Pelham J. Merrill, a retired Justice, to the Court for the case. 405 So. 2d at 933 n. 1.
More recently, in Hornsby v. Sessions, 703 So. 2d 932 (Ala. 1997), the Chief Justice and all Associate Justices recused themselves from considering former Chief Justice Hornsby's declaratory-judgment action, in which he argued that he had held the office of Chief Justice in a de jure fashion from the end of his term until his replacement was qualified. 703 So. 2d at 935 n. 2. Chief Justice Hooper and Justice Maddox, the senior Associate Justice, independently decided that they were disqualified to make an assignment of a Special Supreme Court to hear the case. Therefore,
"[t]he next senior Associate Justice, with the advice, consent, and concurrence of the other Associate Justices who (as to the matter of assigning Special Justices) were not recused or disqualified assigned a retired circuit judge to serve as a Special Chief Justice and assigned eight other retired circuit judges to serve as Special Justices. See § 6.10, Amend. No. 328, Ala. Const. 1901."
703 So. 2d at 935 n. 2.
These cases demonstrate this Court's practice of using the Chief Justice's constitutional powers to assign Special Justices to hear cases. See also Pippin v. Brassell, 455 So. 2d 816, 816 (Ala. 1984) (noting the appointment of a Special Chief Justice and Special Associate Justices following the recusal of all the sitting Justices); and reporter of decisions' note regarding recusal in Parsons Steel, Inc. v. Beasley, 600 So. 2d 248, 253 (Ala. 1992) (stating that, upon recusal of eight Justices, "Chief Justice Hornsby, acting pursuant to § 6.10 [now § 149]," appointed a Special Chief Justice and six Special Associate Justices).
The Cities argue that, in Moore v. Judicial Inquiry Commission, 891 So. 2d 484 (Ala. 2004), this Court changed its practice. They argue that we should follow the practice used inMoore, which would require the Chief Justice to certify the case to the Governor for the Governor to appoint the Special Justice pursuant to § 12-2-14.
Moore involved Chief Justice Roy Moore's challenge to his removal from office by the Court of the Judiciary following his refusal to comply with a federal court order. The Court "authorized the acting Chief Justice to `participate with the Governor in a random drawing' of 20 names from a pool of retired justices and judges" qualified to serve. 891 So. 2d at 850 n. 1. The remaining eight Justices, "having provided a mechanism affording Roy S. Moore a right to be heard, . . . recuse[d themselves]." Id. The clerk of the Supreme Court then chose seven names at random, and the acting Chief Justice and the Governor both appointed them to serve as a Special Supreme Court. In using this mechanism to appoint a Special Supreme Court, the Court cited both § 6.10 of Amend. No. 328 (now § 149) and § 12-2-14.
In Moore, this Court did not hold, as the Cities recognize, that appointments of Special Justices must be made by the Governor pursuant to § 12-2-14. The Cities simply point out thatMoore represents a break in the Court's practice of assigning Special Justices through the Chief Justice's constitutional powers and demonstrates this Court's acceptance of the Governor's statutory appointment power. Moore, however, demonstrates that the Governor does not have the sole power of appointment in the circumstances presented by the case at bar.
If this Court had decided that § 12-2-14 governs in a situation where all the judges are required to recuse, this Court would have followed the procedures that the statute specifies, namely:
"When by reason of disqualification no one of the judges is competent to sit in a case . . . the fact shall be certified by the Chief Justice, if he is competent to sit, or, if not, by the judge or judges sitting, or, if no one is competent, by the clerk of the court to the Governor, who shall thereupon appoint members of the bar of the Supreme Court to constitute a special court of seven members for the consideration and determination of such case."
§ 12-2-14, Ala. Code 1975. In Moore, however, the Court "authorized" the acting Chief Justice to "participate with" the Governor to create a pool of 20 retired Justices and Judges from which 7 names would be drawn at random. A plain reading of the statute, on the other hand, indicates that the Governor alone and in his sole discretion has the power to appoint. Thus, this Court did not in Moore abandon the constitutional powers granted to the Chief Justice. Instead, the mechanism the Court chose to use in Moore constrained the Governor's discretion in the appointment process, something the Court could not have done if § 12-2-14 governed.
Another case cited by the Cities is Taylor v. Liberty National Life Insurance Co., 462 So. 2d 907 (Ala. 1985). The Court cited § 12-2-14, Ala. Code 1975, to justify its decision by a majority of four. However, that case involved neither an evenly divided court nor the appointment of a Special Justice.
We hold § 12-2-14, Ala. Code 1975, invalid to the extent that it improperly restricts the Chief Justice's constitutionally granted power to assign Special Justices to serve temporarily on this Court. Because the Chief Justice was not required to certify the fact of an evenly divided court to the Governor and to allow the Governor to make the appointment, his assignment of Special Justice Bryan was a valid exercise of the Chief Justice's constitutional powers.
Conclusion
The Chief Justice properly exercised his constitutional powers to appoint Special Justice Bryan to hear this case. Because the Cities in their application for rehearing have not raised any fact or point of law this Court overlooked or misapprehended on original submission, we overrule their application for a rehearing.
APPLICATION OVERRULED.
Nabers, C.J., and Harwood, Woodall, Stuart, Smith, and Bolin, JJ., and Bryan, Special Justice, concur.
Judge Tommy Bryan of the Alabama Court of Civil Appeals was appointed on June 21, 2006, to be a Special Justice in regard to this appeal.
Lyons, J., dissents.
Parker, J., recuses himself.