| Ala. Ct. App. | Jan 16, 1912
It is contended in behalf of the appellant that the act of the Legislature purporting to establish the Birmingham court of common pleas (Loc. Acts Ala. 1911, p. 371) is unconstitutional because of a failure, to give the notice of intention to apply therefor, as required by section 106 of the Constitution; and that, therefore, the charge upon which the appellant was tried, which was sworn to before H. B. Abernathy, as the judge of that court, -was without legal validity, and was subject to the demurrer to it suggesting that objection. The specific ground of the objection urged is that the proof of publication of notice, which accompanied the introduction on March 22, 1911, of the bill for the creation of the court, in stating that the publication was made in a named newspaper published in Jefferson county “once a week for four consecutive Aveeks, on, to wit, February 24, March 3, 10, 17, 1911,” failed to show a compliance with the requirement that .such notice “be published at least once a week for four ■consequtive weeks * * prior to !the introduction of the bill.” The contention is that to constitute
It may be presumed that in framing that provision the makers of the Constitution had in mind the then existing state of the law as to the matter of the construction to be placed upon such a provision. The situation was that, in the absence of a statute governing the matter, a requirement that legal notice be published for a given number of weeks was in some jurisdictions held to be complied with by publishing it in that number of successive weeks, though the first publication be less than that number of full weeks prior to the act of which the notice is given; while in other jurisdictions it was held that the number of weeks stated must intervene between the date of the first publication and the performance of the act referred to in the notice.—Olcott v. Robinson, 21 N.Y. 150" court="NY" date_filed="1860-03-05" href="https://app.midpage.ai/document/olcott-v--robinson-3604009?utm_source=webapp" opinion_id="3604009">21 N. Y. 150, 78 Am. Dec. 126; 29 Cyc. 1121; 37 Cent. Dig. tit. “Notice,” § 29. In other words, there was a conflict in the decisions in different jurisdictions where there was no statutory definition or provision bearing on the question. But in Alabama at that time there was in force a section of the Code which bore the heading, “Publication for a specified number of weeks or days defined,” and which provided that, “when the notice is required to- be given for a specified number of weeks, it must be given by consecutive weekly insertions for the number of weeks so specified; and when the notice is of a proceeding to be had or of an act to be done on a specified day, if the publication be for one week, the insertion must be not less than six days before such day; if for two weeks, the first insertion must be at least twelve days before such day; if for three weeks, the first insertion must be at least
Of course, the makers „of the Constitution were not controlled by the provisions of that statute, and, if they had made it manifest that the language they used was to have a meaning different from that given by the statute to the same language when used in a similar connection, the statutory definition of the terms would have to be disregarded. But, when language is found in the Constitution the meaning of which when used in the general laws of the state for purposes analogous to that for which it is used in the Constitution has been specifically defined by a general statute then in force, it may at least be said that, in the absence of. any indication in the Constitution of a different purpose, such a constitutional provision should be construed with reference to the provisions of a general statute of the state having a bearing upon the meaning of terms employed in it, rather than with reference to the views of the courts on questions arising as to the meaning of such terms in the absence of a statute governing the determination of such questions, especially when it is found that the views on such questions which have prevailed in different courts are much at variance. In other Words, the fact that there was in force at the time of the mak
Affirmed.