52 Ala. 231 | Ala. | 1875
The' Constitution of 1819 declared, “ The general assembly, shall direct, by law, in what manner, and in what courts, suits may be brought against the State.” Cons. Art. 6, § 9. In 1820 and 1827, statutes were enacted, investing the circuit court with jurisdiction of suits against the State, when instituted by a citizen of the State, prescribing the mode in which they should be’commenced, conducted, and defended, and the mode of obtaining satisfaction, if judgment was rendered against the State. Clay’s Dig. 339, §§ 143, 144, 145, 146. These statutes were substantially embodied in the Code of 1852, forming §§ 2138, 2139, 2140, 2172, thereof, and were carried into the Revised Code, forming §§ 2534, 2535, 2536, and 2571 thereof. In Ex parte Green & Graham (29 Ala. 52), the judge delivering the opinion asserted that these statutes did not authorize a suit in chancery against the State. The other judges, not deeming a decision of the question necessary in that case, expressed no opinion thereon. The doubt as to the liability of the State to be sued in chancery, thus created, led to the enactment of a statute investing the chancery courts with jurisdiction of suits by and against the State, when a citizen of the State, or a domestic corporation, was the adverse party. This statute forms § 3323 of the Revised Code.
At its present session the general assembly repealed the sections of the Revised Code authorizing suits either in the circuit court, or in the court of chancery against the State. The act is entitled, “ An Act to repeal sections 2534, 2536, 2571, 3323, of the Revised Code of Alabama.” The first section expressly repeals the sections named in the title. The second section declares all laws and parts of laws in conflict with the provisions of this act or which make any provisions for bringing or conducting suits against this State be and the same are hereby repealed. Section 2535 of the Revised Code which imposed on the solicitor of the circuit in which a suit was pending against the State, the duty of defending it, was not expressly repealed. There was no necessity for its repeal, as the office of solicitor of the circuit had been by the Constitution abolished, and it was of consequence incapable of operation.
At the passage of this repealing statute a suit was pending in the circuit court of Montgomery, brought against the State, by one W. A. C. Jones, a citizen of the State. After the passage of the statute, the attorney general moved the circuit court to strike the cause from the dockets. The motion was overruled, and the State by the attorney general -now moves the court for a mandamus compelling the circuit court to grant the motion it overruled.
It is said in Bacon’s Abridgment, “ The king cannot be sued by his subjects by writ, for he cannot issue a command to him
It seemed to be admitted by the counsel of the respondent, that such would have been the result, under the Constitution of 1819, but that the present Constitution confers on the citizen the right of suit, and therefore it was not competent for the general assembly by any enactment to impair or defeat this
A peremptory mandamus will be awarded commanding the circuit court to strike the cause from its docket.