121 So. 12 | Ala. | 1929
The opinion of the Court of Appeals, as expressed in this case on this and former appeal (
It will be observed that the terms of said Code, § 4491, direct what shall be "held." Is this a direction as to what shall be a judicial opinion of the court? If such be its meaning, it is an encroachment by the legislative body upon the judicial department of the government, and in violation of the Constitution. Hackett v. Cash,
The meaning of such a declaration as the one we have in hand was considered by this court in Lindsay v. U.S. Savings Loan Ass'n,
Such is the interpretation of a declaratory statute in Cooley on Const. Lim. (8th Ed.) pages 189, 191, 192, where it is said: "It is always competent to change an existing law by a declaratory statute; and where the statute is only to operate upon future cases, it is no objection to its validity that it assumes the law to have been in the past what it is now declared that it shall be in the future. * * * To declare what the law is, or has been, is a judicial power; to declare what the law shall be is legislative. * * * And if it appears to be the intention to establish by declaratory statute a rule of conduct for the future, the court should accept and act upon it, without too nicely inquiring whether the mode by which the new rule is established is or is not the best, most decorous, and suitable that could have been adopted." We do not think that section 4491 is a legislative direction to the judiciary, but rather a legislative enactment, though in the form of a declaratory statute.
But it is not within the power of the Legislature to fix the county in which an offense was committed, when it was in fact not committed in such county, either in whole or in part, and, when properly interpreted, such is not the effect of section 4491. If it be conceded that section 6 of the Constitution would not prohibit the Legislature from fixing the venue of such a prosecution as the one here involved in a county different from the one in which it was committed, it has not here undertaken to fix the venue of the prosecution, but the place of the commission of the offense.
The Court of Appeals has held, for the reasons set forth in its opinion, that the offense in question is committed, if at all, in the county where there is a breach of duty owing by the husband and (or) father, and that the venue of the prosecution is in such county. We think the reasons assigned and authorities cited support the conclusion reached in this respect, for that section 4491 must be interpreted along with section 4480.
Section 4480 makes it a crime for the husband, "without justcause," willfully to fail to provide for the support of the wife, she being then and there in destitute or necessitous circumstances. Has the Legislature provided that a duty of such nature follows the wife wherever she may be, regardless of her fault in going there? An analysis of this chapter of the Code convinces us that no new duty is thereby imposed. The duty to support the wife may or may not follow her, dependent upon the facts, as controlled by existing legal principles. We observe that to constitute the offense there must be an absence of"just cause." The statute does not undertake to define that term. The absence of a legal duty to support, necessarily, is a"just cause" for the failure to support. Though section 4491 says that the offense was committed in the county where the wife is at the time, yet, if there is "just cause" for the failure to support her in that county, no offense was there committed by the very terms of section 4480 of the same chapter. If the law imposed upon the husband the duty to support his wife only in the county of his residence, and not in the county of her residence, there was "just cause" for the failure to provide for her support in the county of her residence. We repeat that it is necessary to construe section 4491 of the Code in connection with section 4480, in which the offense is defined.
Statutes similar to the one here under consideration have been construed in other states. Ex parte Lewis,
The Court of Appeals finds from the facts shown by the record, not undertaking to set it out in full, "that the whole of it (the testimony) *15 without dispute is to the effect that the duty to support the wife by defendant was at his home in Bullock county, and of whatever crime either of omission or commission the defendant was guilty, [it?] took place in Bullock county."
We think that the Court of Appeals was correct in concluding that, as a result of such finding, there was just cause for a failure to support in Montgomery county, and no offense was there committed. When, however, a prosecution is begun in any county, the court in that county has the power to determine its jurisdiction, and whether the offense as charged was committed within the territory of its jurisdiction. We also agree with the opinion of the Court of Appeals in so far as it relates to the testimony seeking to sustain the character of the prosecuting witness.
It results that the writ of certiorari should be denied.
Writ denied.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.