143 Ala. 162 | Ala. | 1904
This is a proceeding by mandamus to compel the removal of a civil cause pending in the city court of Bessemer, Jefferson county, to the circuit court of said county. The petition is filed under the act approved September 26th, 1903, (Acts 1903, page 369.)
The petition was demurred to, and the demurrer being overruled by the court, answer was filed, and upon the hearing of the petition arid answer, a peremptory writ of mandamus was awarded.
The main proposition, and that which is most strenuously insisted on in argument, is whether there was a compliance with the requirements of section 106 of the Constitution, as to notice and proof of notice, in the enactment of the statute.
Section 106 of the Constitution reads as follows: “No special, private or local law shall be passed on any subject not enumerated in Section 104 of this Constitution, except in reference to fixing the time of holding courts, unless notice of the intention to apply therefor shall have been published, without cost to- the State, in the county or counties where the matter or thing to- be affected may be situated; which notice shall state the substance of the proposed law and be published at least once a week for four consecutive weeks in some newspaper published in such county or counties, or, if there is no newspaper published therein, then by posting the said notice for four consecutive weeks at five different places in the county or counties prior to- the introduction of the bill; and proof by affidavit that said notice had been given shall be exhibited to each house of the Legislature, and said proof spfiead upon the journal. The court shall pronounce void every special, private or local law which the journals do not affirmatively show wa.s passed in accordance with the provisions Of this section.”
That the Act in question comes within the class of legislation denominated a local law under the Constitution, cannot be doubted under the decision of Wallace v. Board of Revenue of Jefferson County, et al., 140 Ala. 491. Conceding, then, that the act is a local law, it is insisted in the first place, that the published notice given was insufficient, in that it failed to state the substance of the proposed law, and this is the principal question in the case.
Before proceeding with the discussion of this proposition, other contentions of appellant in respect to what
“Subscribed and sworn to before me, this the 31st day of August, 1903.” “Frank W. Smith, Notary Public.”
“Notice.”- — “Pursuant to constitutional requirement notice is hereby given that a, bill will be introduced at the present, session of the Legislature of Alabama, for the purpose of allowing the removal of all civil suits pending in the city court of Bessemer, at the option of either party, and of allowing the removal of all civil suits hereafter brought in the city court of Bessemer, at the option of the defendant or defendants, to other courts of competent jurisdiction in Jefferson county.”
“S. B. 332.” — “Authorizing the transfer of any civil cause pending in the city court of Bessemer, in the county of Jefferson, in the State of Alabama, to the circuit court of Jefferson county, in said state, or to the city court of Birmingham, in said state, or to any other court of competent jurisdiction sitting in the city of Birmingham.”
It will be observed that the notice given is not signed by any person, bnt this is not. required by § 106 of the Constitution, and is, therefore, not essential to the sufficiency of the notice. The point is made, that, in the printed copy of the House Journal, there is no jurat to
Recurring to the question as to whether the notice contained the substance of the proposed law, it is urged in argument by counsel for appellant, that the Act as passed is made up of seven sections, in which it set out the duties of the judges and clerks with reference to the transferring of causes, and that none of their duties are mentioned in the notice, citing in support of the contention, Wallace v. Board of Revenue, 140 Ala. 491. The substance of the proposed law, as stated in the notice, is the removal of civil suits pending in the city court of Bessemer, at'the option of either party, and the removal of civil suits thereafter brought in the city court of Bessemer, at the option of the defendant or defendants, from said city court of Bessemer, to other courts of competent jurisdiction in Jefferson county. The duties imposed upon the judges by the Act, in the making of appropriate orders, and upon the clerks, in forwarding the original papers, and copies of minute entries, and in docketing
The mention in particular, in the Act, of the criminal court of Jefferson and the city court of Birmingham, is of no importance. These courts are necessarily embraced in the notice, “To other courts of competent jurisdiction in Jefferson county.” The city court of Bessemer is a court of like jurisdiction, both equity and common law, to the city court of Birmingham, and of like jurisdiction to the circuit court in common law civil cases. There can, therefore, be nothing in the suggestion that the notice did not specify by name these particular courts mentioned in the Act.
We are of opinion, and it is our conclusion, that there is nothing in the Act that is of substance, which is not contained in the notice. The demurrer to the petition was properly overruled, and the judgment appealed from will be affirmed. Affirmed.