58 So. 58 | Ala. Ct. App. | 1912
The controverted question on this hearing is whether the act of the Legislature approved February 28, 1911 (Loc. Acts 1911, p. 30), which purports to repeal an act entitled “An act to establish the county court of Coffee county,” etc., approved February 8, 1901, and all subsequent and amendatory acts relating to said court, is rendered invalid by the provision of section 171 of the Constitution that “the Legislature shall have the power to abolish any court, except the Supreme Court and the probate courts, whenever its jurisdiction and functions have been conferred upon some other court.” It is urged, on the one hand, that the attempt of the Legislature to repeal the laws under which the county court of Coffee county had its existence Avas rendered ineffectual by reason of the failure of the Legislature, in the act by which this purpose was sought to be accomplished, or otherwise, to make provision for conferring upon- some other court the jurisdiction and functions of the court so sought to be put out of existence; while, on the other hand, it. is contended that the existence of such a statutory court may effectually be terminated by a repealing act, though no provision is made for conferring upon some other court the jurisdiction and functions of the abolished court.
The présent Constitution is like its predecessor in providing in the first section of its article relating to the judicial department of the state government (Constitution, § 139) that “the judicial power of the state shall be vested in the Senate sitting as a court of impeachment, a Supreme Court, circuit courts, chancery courts, courts of probate, such courts of law and equity inferior to the Supreme Court, and to consist of not more than five members, as the Legislature from time to time may establish, and such persons as may be by law invested with powers of a judicial nature.” It is also like the former Constitution in defining the jurisdictions and functions of the Supreme Court and of some of the other courts mentioned by name in the enumeration of' the courts in which the judicial power of the state is vested, and in dividing and distributing among tribunals of its own creation the whole judicial power of the state. As to its scheme for the distribution and exercise of this power, the following statement, made in reference to the former Constitution, is applicable to the present one: “The system is in itself and of itself complete; and, though there has been a grant or reservation to the General Assembly of power to establish inferior courts of law and equity, there has not been any part, or any fraction, or fragment of judicial power, left in abeyance, awaiting the happening of any future event, or the exercise of future legislative power, to vitalize or quicken it into activity. If the General Assembly never exercised the power to establish inferior courts with which it was clothed and its exercise is purely matter of legislative discretion, the whole element of sovereignty known as the judicial power would exist, confined to tri
By the terms of the repealing act above referred to the county court of Coffee county went out of existence on the 15th day of July, 1911. The person who had been the judge of that court, treating it as still in existence, undertook on September 4, 1911, to render judgment in favor of one who on the 15th day of August, 1911, had filed with the person who was the clerk of that court during its legal existence a complaint containing the common counts. The transcript before us purports to present an appeal from that so-called judgment. As the court whose judgment purports to b.e presented for review ceased to have any legal existence before the proceeding was instituted, there is no judgment to support an appeal; and the so-called appeal is dismissed.
Appeal dismissed.