[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *971
Attorney General Troy King appeals from a judgment entered by the trial court declaring unconstitutional an act of the legislature creating an additional circuit judgeship in the 29th Judicial Circuit. We reverse and remand.
The third circuit judgeship was originally created by Act No.
"There is hereby created and shall be established the office of circuit judgeship *972 No. 3 in the 29th Judicial Circuit, which shall be in addition to the two circuit judgeships now existing. Provided, the additional circuit judgeship hereby created shall first be filled AT the general election to be held in 1988, and the first judge so elected shall serve a full term of office beginning on the first Monday following the second Tuesday in January, 1989."
(Emphasis added.) Section 11 of the 1985 Act approрriated funding for the additional judgeship for fiscal year 1988-89.
Act No.
"There is hereby created and shall be established the office of circuit judgeship No. 3 in the 29th Judicial Circuit, which shall be in addition to the two circuit judgeships now existing. Provided the additional circuit judgeship hereby created shall first be filled AT the general election to be held in 199U, and the first judge so elected shall serve a full term of office beginning on the first Monday following the second Tuesday in January, 1995."
(Emphasis added.) The amendment to Section 11 appropriated funding for the additional judgeship for fiscal year 1994-95.
Act No.
"There is hereby created and shall be established the office of circuit judgeship No. 3 in the 29th Judicial Circuit, which shall be in addition to the two circuit judgeships now existing. Provided the additional circuit judgeship hereby created shall first be filled AT the general election to be held in 2000, and the first judge so elected shall serve a full term of office beginning on the first Monday following the second Tuesday in January, 2001."
(Emphasis added.) The 1993 amendment to Section 11 appropriated funding for the additional judgeship for fiscal year 2000-01.
Act No. 99-566, Ala. Acts 1999 ("the 1999 Act"), further amended Sections 9 and 11. Section 9, as amended, provided:
"There is hereby created an additional judgeship in the Twenty-ninth Judicial Circuit which shall be Circuit Judgeship No. 3. The additional judgeship created by this act shall be filled AT the general election to be held in 2006 and the judge elected shall serve a full term of оffice beginning on the first Monday following the second Tuesday in January 2007."
(Emphasis added.) The 1999 amendment to Section 11 appropriated funding for the additional judgeship for fiscal year 2006-07.
Act No.
"There is hereby created an additional judgeship in the Twenty-ninth Judicial Circuit which shall be Circuit Judgeship No. 3. The additional judgeship created by this act shall be filled by appointment of the Governor on or after October 1, 2009, from a list of nominees by the Talladega County Judicial Commission.1 The judgeship shall be subject to election AT the general election to be held in 2010 and the judge elected shall serve a full term of office beginning on *973 the first Monday following the second Tuesday in January 2011."
(Emphasis added.) The 2006 amendment to Section 11 appropriated funding for the additional judgeship for fiscal year 2009-10. The 2006 Act was signed by the governor on April 13, 2006.
On April 7, 2006, Chad Woodruff, acting pursuant to the 1999 Act, filed a candidate-declaration form and a qualification form with the Alabama Democratic Party, and paid the filing fee to become a candidate for the newly created third circuit judgeship. On April 12, 2006, one day before the 2006 Act was signed into law, the chair of the Alabama Democratic Party certified to the secretary of state the names of the Party's candidates for the June 2006 primary election. The certification further provided that "[c]andidates who are unopposed are nominated." Woodruffs name appeared on page 8 of the list of candidates as the only Democratic candidate seeking to be elected to the third circuit judgeship; thus, he was certified as the Party's candidate.
campbell requested a judgment declaring that the 2006 Act was unconstitutional and that the third judgeship be filled in the November 2006 election pursuant to the 1999 Act. On August 14, 2006, campbell filed an amended complaint, which added the secretary of state, Nancy Worley, as a defendant and requested a temporary restraining order and/or preliminary injunction directing Secretary of State Worley to certify Woodruff as the candidate for the third judgeship to the Talladega County Probate Judge and requiring that his name appear on the ballot in the general election to be held November 7, 2006.
The State and the secretary of state (hereinafter referred to collectively as "the State defendants") filed an opposition to the request for a preliminary injunction and a motion for a judgment on the pleadings. On August 31, 2006, the trial court denied the motion of the State defendants for a judgment on the pleadings and granted campbell's motion for a preliminary injunction directing Secretary of State Worley to place Woodruff's name on the November 7, 2006, general-election ballot as the Democratic candidate for the third judgeship for the 29th Judicial Circuit.
Woodruff had no Republican opposition in the general election, and he received an overwhelming number of votes, approximately 14,000. On December 22, 2006, the Talladega County Judicial Commission *974 filed a cross-claim against the State defendants, alleging essentially the same grounds as campbell's complaint as to the unconstitutionality of the 2006 Act.2 On January 12, 2007, the State defendants filed a motion to dismiss for failure to join a necessary party, or, in the alternative, a motion to join, Woodruff. Upon Woodruffs joinder as a coplaintiff, the trial court denied the State defendants' motion. Woodruff thereupon alleged that he had properly qualified with the Alabama Democratic Party on April 7, 2006, for the third judgeship; that he had been duly certified on April 12, 2006, as the Party nominee; that he had been duly elected in the November 7, 2006, general election; and that he had since then been certified by the secretary of state as the elected candidate for the third judgeship. Woodruff also adopted by reference all factual allegations and pleadings of campbell and the Talladega County Judicial Commission. Woodruff requested that the trial court declare the 2006 Act unconstitutional and that he be allowed immediately to commence his judicial term of office.
The trial court held a hearing on February 2, 2007, at which ore tenus evidence was presented, and heard testimony from campbell, Woodruff, Judge Julian M. King (place no. 1 circuit judge and ex officio chairman of the Talladega County Judicial Commission), and Clarence Haynes (clerk of the Talladega Circuit Court). On February 21, 2007, the trial court entered a detailed order concluding as follows:
"1. Chad Woodruff was the duly qualified, nominated, and certified Democratic Party candidate for the Talladega County Circuit Judge, Place No. 3, and was the winner of the November 7, 2006 general election for this office.
"2. Act No.
2006-355 is unconstitutional and is, therefore, null and void."3. . . . Act No.
2006-355 did not operate to divest Mr. Woodruff of his right to be declared the elected candidate for this office."4. . . . Mr. Woodruff shall be sworn in without further delay as the Talladega County Circuit Judge, Place No. 3; and the Administrative Office of Courts shall immediately compensate him and provide to him all benefits to which he may be entitled as the elected third judge for the 29th Judicial Circuit, upon assuming duties as judge."
The State filed its notice of appeal on February 28, 2007.3
`"[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct аnd its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.' Philpot v. State,Alabama Republican Party v. McGinley,, 843 So.2d 122 125 (Ala. 2002). `However, where the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the court's judgment carries no presumption of correctness.' Allstate Ins. Co. v. Skelton,, 675 So.2d 377 379 (Ala. 1996). Questions of law are reviewed de novo. BT Sec. Corp. v. W.R. Huff Asset Mgmt. Co.,(Ala. 2004)." 891 So.2d 310
The Talladega County parties contend that this Court lacks jurisdiction over the subject matter in that this proceeding constitutes an impermissible post-election challenge to the legality of the election for the office of circuit judge for the 29th Judicial Circuit, which they say is precluded by §
"No jurisdiction exists in or shall be exercised by any judge or court to entertain any proceeding for ascertaining the legality, conduct, or results of any election, except so far as authority to do so shall be specially and specifically enumerated and set down by statute; and any injunction, process, or order from any judge or court, whereby the results of any election are sought to be inquired into, questioned, or affected, or whereby any certificate of election is sought to be inquired into or questioned, save as may be specially and spеcifically enumerated and set down by statute, shall be null and void and shall not be enforced by any officer or obeyed by any person. If any judge or other officer hereafter undertakes to fine or in any wise deal with any person for disobeying any such prohibited injunction, process, or order, such attempt shall be null and void, and an appeal shall lie forthwith there from to the Supreme Court then sitting, or next to sit, without bond, and such proceedings shall be suspended by force of such appeal; and the notice to be given of such appeal shall be 14 days."
(Emphasis added.)
The Talladega County parties contend that the State defendants' failure to seek appellate review of the trial court's August 31, 2006, order placing Woodruffs name on the November 2006 general-election ballot either deprives this Court of subject-matter jurisdiction or moots this appeal. The Talladega County parties rely upon Bell v. Eagerton,
The State's response to the Talladega County parties' motion to dismiss the appeal does not direct us to any statute specifically authorizing this proceeding as an exception to the general rule set forth in §
The State relies on Morrison v. Mullins,
"We have held that if an event happening after hearing and decree in circuit court, but before appeal is taken, or pending appeal, makes determination of the appeal unnecessary or renders it clearly impossible for the appellate court to grant effectual relief, the appeal will be dismissed."
275 Ala. AT 259, 154 So.2d AT 18. Morrison is easily distinguishable, however, because the event the State asserts makes any appeal of the August 31, 2006, order moot is the secretary of state's compliance with the order, an entirely different circumstance than was presented in Morrison, where the defendant-appellee, not subject to an injunction, merely changed the qualifications applicable to the plaintiff-appellant pending appeal. In such instance it is not possible for the appellate court to award meaningful relief. See Mills v. Green,
"The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from a judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal."
(Emphasis added.)
We do not here deal with a changed circumstance that "renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever." 159 U.S. AT 653,
The State next contends that this proceeding is not an election сontest and *977
therefore that this Court can ignore the jurisdictional limitations of §17-16-44 . Citing Marbury v. Madison,5 U.S. (1 Cranch) 137,(1803), the State alludes to this Court's "inherent authority to review the orders of inferior courts," especially "where, as here, the inferior court has used its authority to strike down an act of the Alabama Legislature." Attorney General's Opposition to Appellees' Joint Motion to Dismiss Appeal, p. 6. Noting the presumption of constitutionality applicable to statutes, the State argues that because the 2006 Act was presumed constitutional on the day the November 2006 general election was held, "there is substantial doubt as to whether there was a valid, lawful election capable of supporting an election contest." Attorney General's Opposition to Appellees' Joint Motion to Dismiss Appeal, p. 8. 2 L.Ed. 60
Article
"(b) The circuit court shall exercise general jurisdiction in all cases except as may otherwise be provided by law. The circuit court may be authorized by law to review decisions of state administrative agencies and decisions of inferior courts. It shall have authority to issue such writs as may be necessary or appropriate to effectuate its powers, and shall have such other powers as may be provided by law."
(Emphasis added.) The legislature has restricted thе jurisdiction of the circuit courts by enacting §
"The general rule without question is that courts of equity will not interfere by injunction with the holding of elections political in character, nor take jurisdiction of a contest after the election is held. But this court is committed to the proposition that equity will interfere by injunction to restrain elections not authorized by law. It will also restrain the usurpation of office, or the assumption of functions of office where no lawful office exists."
212 Ala. AT 452, 103 So. AT 61-62 (emphasis added). Speaking to the predecessor to §
"Statutes restricting the jurisdiction of courts of equity, as defined AT common law, and reiterated by statute in Alabama, should be strictly construed. Construing this statute as a whole, it appears, broadly speaking, to cover cases inquiring into the validity of elections theretofore held — a proceeding in the nature of a contest of an election, whether the legality, conduct or results of the election be the point of attack. We doubt if it would include a case of injunction against the exercise of any form of official power, derived through or by virtue of an election not authorized by law and therefore wholly void. The equity jurisdiction in such case does not rest so much upon matters going to the conduct of the election, but upon the usurpation or abuse of official power under color of a void election."
212 Ala. AT 452-53, 103 So. AT 62 (emphasis added). This Court then concluded:
"Following our former decisions, and, we think, in keeping with sound principles, we hold that the court of equity has the power by injunction to prevent the holding of such election as is here involved [a referendum on moving the site of the courthouse], in a case wholly unauthorized by law, there appearing no adequate legal remedy."*978 212 Ala. AT 453, 103 So. AT 62. Based upon Dennis, we conclude that litigation challenging the consequences of a void election does not come within the sweep of the limitation on subject-matter jurisdiction in §
Against this backdrop, we turn to Bell v. Eagerton, in which we held that a disqualified candidate's appeal was rendered moot by his failure to seek and obtain an injunction to stop the election before it took place and his failure to contest the election. However, Bell is distinguishable because the issue in that case was whether the candidate met the residency requirements. We did not deal with that aspect of equitable jurisdiction, "the usurpation or abuse of official power under color of a void election," which we held inDennis was unaffected by the precursor to §
because we are not here dealing with a limitation on subject-matter jurisdiction under the dichotomy recognized inDennis, 7 the remаining basis for dismissal of the appeal is grounded upon estoppel by reason of delay in prosecuting the appeal until after the election — prudential limitations on the exercise of judicial power not involving subject-matter jurisdiction.
Article
"Reduced to the last analysis, the defense sought to be interposed is in the nature of an estoppel. But this court in State ex rel. Lott v. Brewer,, [298 (1879),] declared that estoppels against the state cannot be favored, and that though they may arise in some instances, yet, upon the broad ground of public policy, they cannot arise, certainly as to the exercise of governmental functions, `from the laches of its officers.'" 64 Ala. 287
We therefore deny the motion to dismiss the appeal.
Article
This result is consistent with the view that a public office that is a creature of the legislature confers no vested right. See Lane v. Kolb,
"When an office is not provided for by the Constitution, but is the creature of statute, there is no element of contract between the officer chosen and the public, or constituent body which confers the office. Being created, and its functions and emoluments conferred, by the legislature, the same body may abolish it, take away or reduce its functions and emoluments, or make any change its wisdom or caprice may suggest, not inhibited by the organic law."
Applying similar principles, other courts have rejected a contention by a candidate that his status protects him from the impact of legislation abolishing the office for which he is a candidate. See State ex rel. Weller v. Schirmer,
"The question of whether or not an office holder or candidate or officer elect has any vested right to an office has been clearly settled contrary to Corn's position. In State, ex rel. Yancey v. Hyde, [, 129 Ind. 296 (1891)], our Supreme Court, AT 28 N.E. 186 , 129 Ind. 302 28 N.E. 186 [,] said:
"`Offices are neither grants nor contracts, nor obligations which can not be changed or impaired. They are subject to the legislative will AT all times, except so far as the Constitution may protect them from interference. Offices created by the Legislature may be abolished by the Legislature. The power that creates can destroy. The creator is greater than the creature. The term of an office may be shortened, the duties of the office increased, and the compensation lessened, by the legislative will. (Citations omitted.)'"
Woodruffs status as the nominee of the Democratic Party does not insulate him frоm the effects of the 2006 Act in amending the 1999 Act.
B. Whether the Provision for Gubernatorial Appointment inthe 2006 Act is Unconstitutional
The Talladega County parties contend that the provision in the 2006 Act allowing the governor to fill the office of the third circuit judgeship by appointment violates §§
An act of the legislature arrives with a presumption of constitutionality; a party challenging that constitutionality has the burden of overcoming that presumption. State exrel. King v. Morton,
The State relies upon Griggs v. Bennett,
The plaintiffs in Griggs filed an action seeking an order directing the secretary of state to place the judgeship on the ballot for the primary and general elections in 1996, rather than filling the office by appointment. The trial court denied relief, holding that the judgeship should be slated for election in 1998. On appeal, this Court affirmed, noting "that vacancies may occur for reasons other than the usual causes listed in an appointment provision." 710 So.2d AT 412. However, in no instance has this Court ever upheld the authority of the governor to fill a "vacancy" pursuant to a statute providing for appointment of the initial office-holder. We decline to extendGriggs so as to permit the complete disregard of § 153 and the emasculation of § 152, which provides: "All judges shall be elected by vote of the electors within the territorial jurisdiction of their respective courts." We do not have the prerogative, by judicial fiat, оf reviving a practice once permitted by our Constitution but subsequently repealed.10
"If any provision of this Code or any amendment hereto, or any other statute, or the application thereof to any person, thing or circumstances, is held invalid by a court of competent jurisdiction, such invalidity shall not affect the provisions or application of this Code or such amendment or statute that can be given effect without the invalid provisions or application, and to this end, the provisions of this Code and such amendments and statutes are declared to be severable."
The absence of a severability provision is not determinative. See State ex rel. Jeffers v. Martin,
"To be sure, `[t]he inclusion of a severability clause is a clear statement of legislative intent to that effect, but the absence of such a clause does not necessarily indicate the lack of such an intent or require a holding of inseverability.' [City of Birmingham v. Smith,, 507 So.2d 1312 1315 (Ala. 1987)] (emphasis added). Nevertheless, `the authority of a court to eliminate invalid elements of an act and yet sustain the valid elements is not derived from the legislature, but *982 rather flows from powers inherent in the judiciary.' 2 Norman J. Singer, Sutherland Statutory Construction, § 44.08 (5th ed. 1992)."
Herе we have a severability clause within the original act — the 1985 Act — creating the additional judgeship for the 29th Judicial Circuit, thereby justifying the conclusion that there exists a "clear statement" of legislative intent in favor of severability. See § 15 of the 1985 Act, which was left unchanged by the amendment in the 2006 Act ("The provisions of this Act are severable. If any part of the Act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.").
This Court addressed the standard for ascertaining severability in Newton v. City of Tuscaloosa,
"A criterion to ascertain whether or not a statute is severable so that by rejecting the bad the valid may remain intact is: The act `ought not to be held wholly void unless the invalid portion is so important to the general plan and operation of the law in its entirety as reasonably to lead to the conclusion that it would not have been adopted if the legislature had perceived the invalidity of the part so held to be unconstitutional.' A Bertolla Sons v. State,, 247 Ala. 269 271 ,, 24 So.2d 23 25 [(1945)]; Union Bank Trust Co. v. Blan,, 229 Ala. 180 [(1934)]; 6 R.C.L. 125, § 123." 155 So. 612
(Emphasis added.)
Also further guiding our analysis is State ex rel. Jeffersv. Martin:
"Under these well-established principles, the judiciary's severability power extends only to those cases in which the invalid portions are `"not so intertwined with the remaining portions that such remaining portions are rendered meaningless by the extirpation."' Hamilton v. Autauga County,, 289 Ala. 419 426 ,, 268 So.2d 30 36 (1972) (quoting Allen v. Walker County,, 281 Ala. 156 162 ,, 199 So.2d 854 860 (1967)). If they are so intertwined, it must `"be assumed that the legislature would not have passed the enactment thus rendered meaningless."' Id. In such a case, the entire act must fall. 2 [Norman J.] Singer, [Sutherland Statutory Construction] § 44.04, AT 502 [(5th ed. 1992)]. Nevertheless, `if the remaining portions of an Act are complete within themselves, sensible and capable of execution, the Act will stand.' Mitchell v. Mobile County,, 294 Ala. 130 134 ,, 313 So.2d 172 174 (1975)."
735 So.2d AT 1159.
See also City of Mobile v. Salter,
"`It is an elementary principle that the same statute may be in part constitutional and in part unconstitutional, and that if the parts are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected. "But," . . . "if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other as to warrant a belief that the legislature intended them as a whole, and that, if all could not be carried into effect, the legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them."'"
In Springer v. State ex rel. Williams,
"In the case of State ex rel. Crumpton v. Montgomery et al., Excise Commissioners,, 177 Ala. 212 , 59 So. 294 302 [(1912)], this court, speaking through Mr. Justice McClellan, held: `An enactment may be valid in part and invalid in part, and the general rule is that, if the valid and invalid parts are independent of each other, separable, and the valid competent to stand without the invalid, leaving an enactment sensible and capable of being executed, the valid parts will survive and the invalid will be stricken. Powell v. State,[(1881)]; Doe ex dem. Davis v. Minge, 69 Ala. 10 [(1876)]; State v. Davis, 56 Ala. 121 , 130 Ala. 148 , 30 So. 344 [(1901)]; 36 Cyc. pp. 976-978. It is also to be said, in the nature of limitation of the rule stated, that the whole statute will be stricken if the valid and invalid parts are so connected and interdependent in subject-matter, meaning, and purpose that it cannot be presumed that the Legislature would have passed the one without the other, or where the striking of the invalid would cause results not contemplated or intended by the lawmakers, or where that invalid is the consideration or inducement of the whole act, or where the valid parts are ineffective and unenforceable in themselves, аccording to the legislative intent.'" 89 Am. St. Rep. 23
229 Ala. AT 342-43, 157 So. AT 222. See also City ofBirmingham v. Smith,
Addressing severability in its February 21, 2007, order, the trial court held:
"The general purpose and intent of Act No.2006-355 was to change the manner of filling the judgeship from an elective position to an appointed position. To accomplish this radical change after 20 years of the position being subject to an election, the legislature had to delay the judgeship. The delay was only the means to accomplish the filling of the judgeship by an appointment as opposed to an election."
The trial court further found that the language in the 2006 Act dealing with the election following the initial appointment was "merely surplusage because our constitution schedules elections subsequent to appointment." The trial court thus concluded:
"An appointment and subsequent election of the judgeship as provided in Act No.2006-355 are so connected and interdependent in subject matter that the whole must be stricken. The appointment was a consideration and inducement to a subsequent election. The election language was surplusage because Constitutional Amendment 615 [now, Local Amendments, Talladega *984 County, § 6 (Off.Recomp.)] provides for elections after valid and legal appointments. The two (appointment and election) are intertwined in a manner that one logically cannot fall without the other. Therefore the whole act must fail."
The 2006 Act unquestionably accomplished three departures from what was then the existing law, i.e., the 1999 Act:
1. It postponed the time for the commencement of service on the part of a third judge in the 29th Judicial Circuit from the second Tuesday in January 2007 to October 1, 2009;
2. It provided for filling the office by appointment, rather than by election; and
3. It provided for filling the office AT the general election to be held in 2010 with the judge so elected serving a full term of office beginning on the first Monday following the second Tuesday in January 2011.
We must determine whether we agree with the trial court's ultimate conclusion that "the appointment was a consideration and inducement to a subsequent election." Our review of an issue concerning the intent of the legislature is confined to the terms of the legislative act itself, unaided by the views of observers of or participants in the legislative process.City of Daphne v. City of Spanish Fort,
The Talladega County parties call our attention to the provision of the 2006 Act requiring that the inaugural term of the third judge should commence on or after October 1, 2009, significantly before the second Tuesday in January 2011. Striking only that portion of the 2006 Act while maintaining the balance of the act, they argue, would result in a delay not intended by the legislature. So, although it is irrefutable that the 2006 Act contemplated delay, by severing only the portion providing for the appointment of the new judge and leaving in place the portion providing for the election, we will have effectuated a further delay. If the legislature had intended that the judgeship not be filled into 2011, it would not have set a date as early as 2009 for the appointment.11
On the other hand, if we do not sever the provision for appointment and save the portion deferring filling the office until January 2011, the election of 2006 and the commencement of a term in January 2007 is a fait accompli. Of course, this circumstance is flatly contrary to the timetablе clearly contemplated by the 2006 Act with its deferral to a date no earlier than October 1, 2009, for the commencement of service *985 by the third circuit judge. If we decline to sever and save, thereby striking down the 2006 Act in its entirety, the legislature could not restore the timetable contemplated by the 2006 Act by subsequent legislation because § 151 preserves from legislative action the right of a judge to hold office for the full term.
The legislature has not shown any reluctance to defer the filling of this seat, as evidenced by three previous postponements of the time for creation of the office. If we sever and save, we preserve the status quo contemplated by the 2006 Act" no immediate occupant of the office. Under this alternative, if it comports with legislative will to have an occupant in place earlier than January 2011, the legislature could act early in the 2008 regular legislative session so as to permit filling the seat in the 2008 election or provide for a special election AT some time before the 2010 election.
When we reject severability and strike down in its entirety an act that contains an invalid provision, we must be comfortable with the conclusion that a majority of the legislators voting in favor of the bill that became the act would prefer no statute AT all to the alternative of eliminating only the provision that violates the constitution. In this context, the question posed would be:
"If the provision in the 2006 Act allowing the governor to appoint AT some time after October 1, 2009, is struck down, are you content to allow that circumstance to nullify the separate provision of the 2006 Act repealing the election this year (2006) and replacing it with an election in 2010?"
Section 1 of the 2006 Act, in the first sentence, creates an additional judgeship. There follows two separate sentences. The first of these two sentences calls for filling the office by appointment "on or after October 1, 2009." The second of these two sentences subjects the judgeship to election AT the general election in 2010. The record of three previous postponements (1987, 1993, and 1999) of the time for filling the additional judgeship for the 29th Judicial Circuit is convincing evidence that the deferral of the commencement of the term from 2006 to a later date was not a secondary consideration wholly subordinate to the provision for commencement of the term by gubernatorial appointment. The answer to the hypothetical question whether the legislature would have been satisfied by the result of striking down the entire 2006 Act would therefore have to be an emphaticno. A legislator so polled would be cognizant of the fact that saving that part that is constitutional would permit subsequent enactment of a statute that passed constitutional muster while continuing to provide for a term beginning AT a date other than in 2006, as was clearly intended by the 2006 Act, consistent with the will of three preceding legislatures. On the other hand, if we conclude that the will of the legislature would have been to see the entire 2006 Act fail by reason of constitutional infirmity as to only a portion of it and thus to allow an election to take place in 2006, we will have ignored the clearly expressed will of the legislature in that portion of the 2006 Act unaffected by constitutional infirmity. Such aggressive exercise of the power of judicial review is inconsistent with our obligations under the constitutional mandate for separation of powers.
As this Court stated in Springer: "If the act thus deleted of the invalid part is competent to stand without the invalid part, and leaves an enactment complete within itself, sensible, and capable of being executed, it will stand, unless the two parts" the valid and invalid — are so inseparable as tо raise the presumption that the Legislature *986 would not have enacted the one without the other." 229 Ala. AT 343, 157 So. AT 223. Applying that standard to this case, the portion of Section 1 of the 2006 Act amending the provision in the 1985 Act, as last amended, which called for an election in 2006, and providing instead for an election in 2010 for a term of office to begin in 2011, clearly constitutes an enactment "complete within itself, sensible, and capable of being executed."
In summary, we conclude that it is more logical to presume that the legislature did not contemplate election of a third circuit judge in the 2006 election than it is to assume that, if the legislature knew that the office could not be filled by gubernatorial appointment on or after October 1, 2009, it would prefer the status quo before the 2006 Act of an election in 2006. This is especially so in light of the legislature's previous disposition to postpone repeatedly the effective date and of the availability to the legislature of the means to adjust further the effective date by subsequent legislation if we decline to sever and save.
We therefore cannot conclude that the primary intent of the legislature was to change the method of filling the judgeship from that of an elеction to appointment. The unconstitutional provision of the 2006 Act is not "`so important to the general plan and operation of the law in its entirety as reasonably to lead to the conclusion that it would not have been adopted if the legislature had perceived the invalidity of the part so held to be unconstitutional.'" Newton v. City ofTuscaloosa, 251 Ala. AT 217, 36 So.2d AT 493 (quotingA. Bertolla Sons v. State,
MOTION TO DISMISS APPEAL DENIED; REVERSED AND REMANDED.
SEE, WOODALL, STUART, SMITH, BOLIN, and MURDOCK, JJ., concur.
COBB, C.J., and PARKER, J., dissent.
COBB, Chief Justice (dissenting).
I respectfully dissent. This case presents a question of first impression in this State, and, in answering it, a majority of this Court has chosen to remove a judge *987
from the office in which he has been faithfully and effectively serving the citizens of Talladega County since his election by an overwhelming majority of those citizens. I believe that the correct legal analysis of this question shows that the majority incorrectly decides two issues, either of which is sufficient to uphold the election in this case. First, I am of the opinion that the State's failure to timely seek review of the trial court's order placing Chad Woodruffs name on the ballot for the November 2006 election deprived the courts of this State of jurisdiction to address the validity of the election AT issue in this case. Second, even if I agreed that this Court has jurisdiction, I believe that the majority errs in holding that the offending portion of Act No.
For all that, the State opted not to pursue a timely appeal of the trial court's August 31, 2006, order; neither did it seek injunctive relief challenging the trial court's action. Further, it is settled law that the State could have brought a quo warranto proceeding to challenge Wood-ruffs status on the ballot, see Corprew v. Tallapoosa County,
I believe that State ex rel Norrell v. Key,
"In this state quo warranto is a statutory proceeding and to be maintainеd it must meet the requirements of the statute as to parties and procedure. Louisville N.R. Co. v. State,, 154 Ala. 156 [(1907)]. As for public officers, the proceeding may be brought to oust from office any person who `usurps, intrudes into, or unlawfully holds or exercises any public office,' or does an act which `forfeits his office.' Title 7, § 1136, Code of Ala.1940 [now § 6-591, Ala. Code 1975]. In State ex rel. McIntyre v. McEachern, 45 So. 296 , 231 Ala. 609 [(1936)], we said: `It will lie to test the qualifications of one to hold an office when they are sufficient to make it unlawful for him [sic] with them to hold the office. Those qualifications must go to his eligibility to hold the office or sufficient to cause its forfeiture.' Here there is no question as to appellee's forfeiture of the office. The substance of appellant's complaint is that the appellee holds the office unlawfully, such being an attack on the appellee's qualifications as a nominee. 166 So. 36
"We find appropriate to a decision of this case the statement in 29 C.J.S. Elections § 141, p. 211: `Objections relating to nominations must be timely made. It is too late to make them after the nominee's name has been placed on the ballot and he has been elected to office; his election cannot be impeached on the ground that statutory requirements regarding nominations were not complied with in his сase . . . . AT 18 Am.Jur., Elections, § 131, p. 263, it is said:
"`It is a firmly established general rule that objections to irregularities in the nomination of a candidate should be taken prior to election. Voters finding a ticket or the names of candidates on the official ballot are not required to determine whether they are entitled to a place thereon, but may safely rely on the action of the officers of the law and on the presumption that they have performed their duty. Thus, an election in which the voters have fully, fairly, and honestly expressed their will is not invalid because the certificate of nomination of the successful candidate is defective through the omission of some detail; nor is the title of the successful candidate affected by a subsequent decision holding the law under which the nominations were *989 made invalid. . . . Some decisions have gone so far as to hold that in the absence of a statutory provision to the contrary, an election is not invalidated by the fact that the nomination of the successful candidate was fraudulent and not made in the manner prescribed by statute, unless the noncompliance with the law had the effect of preventing a fair vote.'"
276 Ala. AT 525-26, 165 So.2d AT 77-78 (emphasis added). The Court in Key affirmed the judgment of the trial court rejecting the plaintiffs challenge to Key's election.
Moreover, although I agree that an action by the State is not normally subject to estoppel, see, e.g., Greenwood v. Stateex rel. Bailes,
"A share in the sovereignty of the State, which is exercised by the citizens AT large in voting AT the elections, is one of the most important rights of the subject, and in a republic ought to stand foremost in the estimation of the law. It is that right by which we exist, as a free people, and it will certainly therefore never be admitted that less ceremony ought to be used in divesting any citizen of that right than in depriving him of his property. Such a doctrine would ill suit the principles of the Revolution which taught the inhabitants of this country to risk their lives and fortunes in asserting their liberty, or, in other words, their right to share in the government. Let me caution against precedents which may in their consequences render out title to this great privilege precarious."
3 Papers of Alexander Hamilton 544-45 (Harold C. Syrett, ed., Columbia University Press 1962). The United States Supreme Court is in accord: "It is beyond cavil that Voting is of the most fundamental significance under out constitutional structure.' Illinois Bd. of Elections v. Socialist WorkersParty,
Given the significаnce of the right to vote here AT issue, I cannot accept a rule that estoppel never applies to the State and that the State need not timely prosecute any action it may have to challenge the exercise of that right. Moreover, I believe that the majority's holding on this point unwisely vests in the attorney general an unrestricted ability to challenge elections otherwise long settled. Surely even the State is AT some point subject to a requirement that it timely assert a claim or be silent, and I believe that that point is shown in this case. I would hold that the State can be estopped to challenge the result of the exercise by citizens of this State of their fundamental constitutional right to vote in the event it fails to assert that challenge in a reasonably timely manner as determined by the applicable statutes and case authority. Thus, I would conclude that the plain language of §
I agree with the majority that a critical consideration on the issue of severability is the legislature's intent. Newtonv. City of Tuscaloosa,
Moreover, the record contains evidence of the circumstances surrounding the enactment of the 2006 Act that includes the testimony of Clarence Haynes, a former legislator and sponsor of one of the prior bills creating the new judgeship, that the purpose of the 2006 Act was to delay the filling of the new judgeship by three years and then to fill it by appointment. In light of these circumstances, I agree with the trial court's determination, quoted in the majority opinion, that the general purpose of the 2006 Act was to fill the new judgeship in Talladega County by appointment. Only when the judgeship existed as a result of that appointment could аn election take place. I conclude that this is exactly the sort of intertwining that supports the trial court's determination that the entire 2006 Act is constitutionally invalid.
State ex rel. Jeffers provides a good example of a situation in which a provision in an act was severable because it was not so intertwined. The Court in State ex rel.Jeffers addressed a challenge to a provision of the legislature's statutory plan creating and regulating city school boards. *991 AT issue in State ex rel. Jeffers was a portion of the general provision regulating the composition of the school boards and providing that teachers would not be eligible to serve as members of a school board. The Court applied the principles already noted by the majority to conclude that the constitutionally infirm language could be properly severed from the many provisions of the statute providing for the type and composition of school boards. The Court stated that because the offending language was only an exception to the general rule and because the rule was fully applicable without the exception, severability was warranted. 735 So.2d AT 1159-60.
This case is entirely distinct from State ex rel.Jeffers. Unlike the statutory plan in State ex rel.Jeffers, the 2006 Act has only one purpose — the filling of the newly created judgeship. that purpose was to be accomplished by an appointment. The fact that it was subsequently to be filled by election was wholly contingent upon that initial establishment. I do not believe that the majority's parsing of the three sentences in the 2006 Act, no matter how careful, can overcome this fact. Accordingly, even in the event that this Court could find an appropriate basis on which to exercise jurisdiction over this case, I would conclude that the trial court correctly determined that the 2006 Act was constitutionally invalid in its entirety and that Judge Woodruff was properly elected to office under the revived act — Act No. 99-566, Ala. Acts 1999.
PARKER, J., concurs.