*1 assign- argued Having considered thereafter continuing each week no error. error, find we ments of is di- weeks, Pugh Lenden consecutive to be af- is due trial court judgment the Circuit pay to the Clerk of rected to firmed. Alabama, County, of Escambia Court with weekly $60.00 sum of $100.00 Affirmed. applied to the deficit being payment applied being $4,320.00 and $40.00 MERRILL, HAR- HEFLIN, J., and C. support payments;
weekly child FAULKNER, JJ., concur. WOOD 4, 1974, the February during the week of Pugh pay to the Clerk Lenden shall said Coun- Court of Escambia Circuit Alabama,
ty, balance of the entire will then stand
deficit which $1,240.00 plus the additional
amount of support; as child sum of due $40.00 So.2d 830 Pugh pay thereafter the said Lenden will weekly sum of to the Clerk $40.00 et al. COMMISSION MORGAN COUNTY County, Court of Escambia Circuit Alabama, payments to which such con- Judge et al. Newton B. POWELL during minority tinue of Charlton SC 404. Clay Braswell until such time as or provided judgment has been modified as Supreme Court of Alabama. by law.” April 4, 1974.
Pugh argues amount
awarded excessive and that trial his abused discretion. findWe no
merit this contention.
Pugh argues also the trial
court committed reversible error in refus
ing log to allow into evidence book or kept
record which he had aas truck driver employer.
for his He the log claimed book place
would show that he was at not Faye
where conception Braswell testified
occurred, concep at the time she testified place.
tion log took book document part not included as a of the record
appeal. Consequently, we cannot review ruling of the trial court. Williams
Schaeffer,
(1955). do Pugh’s We note from testimo
ny that he was log allowed to use his book testify
to refresh his recollection and to Faye
that he during Braswell conception. time her *3 Straub, Decatur, appellees.
Robert Harris, Decatur, Hobbs, Truman Julian Montgomery, appellants.
hereunder shall be judge circuit ap- judge, fixed subject such proval county governing body resides, county in which such paid equal monthly in- shall be treasury stallments out of the county upon certification judge. circuit 2. Act shall become ef- “Section immediately upon passage its fective approval by Governor, upon its becoming a (First otherwise law.” Ex. Session, 1959.) *4 stenographers The salaries of to the judges years by fixed for were several the judges conferences between and the County In Chairman Commission. times, fairly stenographer recent employment one of left judges his to accept position paying a better with a local industry. employee re- had not been placed the time of be- proceedings at low. during employment of the
Sometime practice developed of stenographers, fixing compensation pay on a basis identical with that of certain other similar Lusk, Guntersville, amicus cur- Lusk & county employees. system A with .merit of Circuit for Alabama Association iae job descriptions county employees was Judges. later used. Melton, Champ Lyons, Oakley and Jr., July County On Commission for Asso-
Jr., Montgomery, amicus curiae budget for requested a letter tentative of Ala- ciation of Commissions budget judge. joint the office of each A bama. request. pursuant this was submitted budget in this were
Included tentative HARWOOD, items salaries for each secretarial Justice. individually. ranged judge These salaries providing for passed an Act was In $4,680.00 per judge, for one annum assistance stenographic the allowance $7,200.00 $6,192.00 for a second and judge, judge Eighth Circuit. each Judicial sen- judge, depending for the third convenience, as may be found this Act For secretary iority whom of Ala- (28a), Code Title Section letter, By employed. the Chairman The Act reads: (pocket part). bama judges that the Commission notified the the secretaries Eighth salaries judge of 1. Each
“Section judges in accordance with sur- to. would be hereby authorized Circuit is Judicial em- vey stenographic that had been conducted as- such clerical or employ ployee Board some- necessary carry Personnel State as be sistance judges no time The had offered salary The before. duties of his office. out the survey objection this the time was employed at or stenographer clerk of each as areas geographical in their inquiry make bound made, refused specifically but legal and fair worth to the reasonable judges furnished survey. secretaries. descriptions, and surveyor job job responsibilities and duties outlines four inquired judges The three secretaries. of their at- area, of numerous other courts circuit, in- newly employed larger sec- survey, torneys job In pay. were classified judges to secretarial retaries dustries as 22, Step finding a sala- II, at Range and made detailed Steno then convened Clerk nothing the secre- month. We find the salaries of ry per of fact and fixed $348.00 scale ad- pertaining, in the record with the evidence taries in accordance experienced judges’ inquiries. for more survey fixed in the result of the duced as a certify these secretaries. was directed to Register “in for action findings the Commission 1973, be- January a conference pertaining to accord with the common law judges Chairman tween powers the inherent of a constitutional Commission, in- judges were above,” i. set forth statute pay scale submit- proposed formed that the e., of Ala- (28a), Sec. 125 Title Code budget by the in their tentative ted part). (pocket bama 1940 courts’ accepted, not be would “Clerk-Ty- paid as secretaries would be stated, As finding rejected above *5 considerably was pists.” salary This scale by the Commission. judges’ in the ten- proposed less than that 1973, April On the court issued an or- 27 budget. tative der to to show cause the Commissioners It is in the decree rendered recited why salary proposed schedule for January this case that at the 1973 confer- judges’ secretaries was not reasonable ence : why implemented. it not be should * * * po- “The took the Chairman sition that had the hearing he was set for matter on [the Commission] authority May to fix com- their hearing 1973. At the the Commis- [secretaries] must pensation and abide sioners judges first moved that the three his decision he felt was fair and ground “they which recuse on the themselves survey in accord The personal with the made. have a in- interest in the matters position Presiding Judge argument took volved.” After on this mo- description tion, denied, the job was tailored to fit the judges all concur- three range rather versa.” ring. than vice pay the secretaries continued Thereupon the a Commissioners filed survey.
be amount fixed in the written answer, parts per- answer. The appeal tinent to this reads:
Upon resignation Judge Hundley’s 1973, secretary in March he thereafter “Considering the total welfare of the 1973, April requested a convocation of County, income, its its obligations and judges for purpose conducting a required expenditures, salary sched- wage survey reflect which would the rea- ule of the stenographers and clerical em- legal stenographic sonable worth of service ployees of the other officers of the Eighth in and around Circuit Judicial required paid to be by the Com- might so that it be certified mission and that stenogra- of its own Commission. phers employees, and clerical it declined presiding approve set convocation schedule submitted April 1973, requested for to it approval by all Judges Eighth three of Circuit court. Judicial 12, 12, of Ala- By Title Code Section schedule approve such “It will precursors have been bama whose it, Morgan fixed
may submitted be authority county prior codes, seven Board for Personnel County by the State powers to act governing bodies and their employees and clerical stenographic all areas, spelled out in detail. certain County.” Morgan By of Alabama Title Code Section to offer declined The Commissioners granted in addition to the presented evidence, and after counsel specifically it is generally Section legal principles as to arguments their provided county that the courts of commis- involved, for the Commissioners counsel sioners, revenue, county other boards or on their of the cause for submission moved bodies, adopt budget sys- governing must under taken then matter was answer. the affairs of the tem for conduct of court. advisement appropriate county, and to this end county treasury funds from the sufficient was entered a decree May 7On expenses county as pay the actual Powell, Presid- B. Newton Honorable adopted. so budgét shown ad- it was considered by which ing Judge, salary sched- and decreed judged mon aspect appropriating In the stenographers respective ule treasury, county gov ey county by the court determined theretofore body exercising erning must be deemed as force, and put in and was to reasonable legislative power. was taxed County Commission Morgan pay the sal- costs, and was ordered many concerning the of the cases While fixed stenographers aries point contain statements relative to now court. executive, ju- legislative, the exercise of level, power on the state no valid dicial quite by the court entered The decree deny application appears reason transcript pages. lengthy, covering some principles on a lower or these same *6 in the first three are recited The facts is made therefore level. No distinction cases are a number of pages and thereafter powers and limita- our discussion of the of other number from a substantial cited the three branch- tions of the functions of conclusions jurisdictions supportive of the government es of whether the state lev- that the court reached in the decree county el or level. power, to fix statutory inherent and appellants for have In brief counsel secretaries, and order
the salaries of
points
raised three material
:
by the Board
of the salaries
payment
of Commissioners.
pos-
not
That the
below
(1)
did
statutory power,
power,
inherent
nor
sess
Day et al. v.
As
ex rel.
stated
State
13, supra,
(28a),
under Section 125
Title
al.,
Ala.
ences, including political influence, in the order a Court Power Inherent 1. judicial tenure, exercise of functions. Life Opera- Monies Appropriation degree, and provi- to a lesser constitutional Expenses. tive sions that a judge’s salary not be low- during office, ered his term of evidence Consti- traditionally the Historically and concept. the United and of states of all tutions gov- powers separated States always The courts have exercised inher- legisla- branches, the three into ernment protect ent adjudicatory pro- its judicial. Sec- executive, and tive, the cesses, processes, to control such to ward its and of our Constitution tion 42 upon judi- off encroachments recognized constitutions, is previous our precursors in functions, cial in emergencies to order principle. of this settled a reflection but payment of op- small sums essential to court, eration of payment such spheres respective Within lodging, jury, meals and etc. supreme. government branch of each instances exigency originated from a 328. Stone, 139 So. 224 Ala. State past expense necessarily incurred in an power are legislative power and Judicial emergency, and not expense. for a future encroach coordinate, can neither Sys Huguley Water parte Ex the other. It does not seem have been intent 799. al., 213 So.2d tem et people, as evidence their Consti- the amount determine authority to judiciary tutions utterly was to be perform for the necessary appropriations independent completely political of all govern functions essential ance It always considered, control. been exclusively fully ment vested recently, until prov- that it was within the Hard, Ala. Abramson legislature. ince fix sala- Consti Alabama 590. Section 155 So. provisions ries. The in most state Consti- money shall 1901, provides: “No tution fixing judge’s tutions tenure for a term *7 upon ap except treasury the paid out of years of providing and for the elec- * * *” by law propriation made judges, tion of reflects an intention on the part people impose degree to to a powers of the separation of The idea of some independ- limitation on the absolute un- well government was of branches three judiciary. ence of the the United framers the derstood accepted by Constitution, fully and States In drafting enacting and their Constitu- state Constitu- the various the framers tions, people the given have the to in Madison As observed tions. James the legislature tax, and to disburse the “goes concept the 47), (No. The Federalist proceeds This, thus raised. for the reason prohibit anyone no farther than the legislature members of the are exercising the departments from entire closer to people, the in position and department.” powers of another weigh the financial gov- needs of all of the ernmental agencies. mandated Their constitutionally decisions in with the Along these prin- political, matters are powers, judicial. two not separation doctrine The through Con- the committee antedating hearings written ciples probably and close country, contact with all of govern- have this produced in stitutions
307 974, 193, 274 A.2d 402 ment needs are thus cert. den. U.S. 91 functions and their 1665, 138, apportion position and S.Ct. 29 L.Ed.2d decided to distribute 1971. -usually inadequate appears It state that the Court Common Pleas monies from year treasury. Clearly, budget courts neither submitted its the fiscal ending 1 July to the Finance Director equipment making the time nor 1971 City Philadelphia pared who decisions. proposed $3,200,000.00. budget by some However, years the courts of recent requested Court additional have, by emphasizing the several states $5,200,000.00 City Council, and Judiciary-Inherent “Independence of hearings request. were had on theories, conclusions that Power” reached request Council refused the for additional judiciary, being coordinate branch of funds, approved only and Mayor’s rec- independent government, fiscal ommendation which based orig- on the itself, to order legisla- maintain and inal recommendation of the finance direc- appropriate tive branch such monies to tor. judiciary judiciary may as the find thereupon brought Court mandamus reasonably operation necessary compel Mayor City Council to their courts. appropriate requested additional funds. decisions, Among many though Superior A judge specially Court des- all, effect, holding ignated by to this Supreme cited and Court to hear the commented in the decree here in- matter. disallowing After ten of the twen- Miller, 35, ty-two are: volved v. 153 Colo. budget pro- Smith items included 738; County posed 384 P.2d Noble Council v. judges, special judge State, 709; 172, $2,500,000.00 125 N.E.2d Ind. Com- awarded some in items con- County missioners Court of Lubbock tained in budget proposed by v. Martin, Mayor (Tex.Civ.App.); City S.W.2d ordered the Tate, Commonwealth ex Carroll v. 442 Council appropriate rel. additional 193; 45, Judges Pa. 274 A.2d Supreme amount. The Court affirmed Third of with Circuit State some modifications lower court’s Judicial Wayne, Michigan County Mich. mandamus order. 1, 228; 190 N.W.2d McAfee v. ex State court, In the proceedings the lower Stodola, rel. 778 (Ind.); 284 N.E.2d Carl- special that the ruled burden was Stodola, son v. State ex rel. 247 Ind. upon the relator court to show the reason- 532; 220 N.E.2d Norman & Warden v. ableness of budget, and further ruled 204; Van Elsberg, 262 Or. 497 P.2d City present could not evidence as 880; Isley, Powers v. 66 Ariz. 183 P.2d efficient use of funds the court Maricopa, Mann v. 104 Ariz. present in its budget. 931; 456 P.2d Bass v. of Sa- In an excellent comment 120 Penn.L. line, 860; 171 Neb. 106 N.W.2d Board R. 1187 (1972), points the author out that Stout, Vigo County Commissioners of budget while the requests of a court might 683; 136 Ind. In re N.E. Salaries *8 entirely be op- for the efficient reasonable for Probation of Bergen County, Officers court, eration of budget determined 422, 417; 58 278 A.2d Birdsall v. Pri- N.J. legislature may at the same time be County, 266, 250; ma 106 Ariz. 475 P.2d body reasonable since that must consider the State ex rel. Weinstein v. St. Louis Coun- competing funding demands for made ty, 451 (Mo.). S.W.2d many governmental branches, depart- ments, far-reaching boards,
The most agencies decision concern- and the distri- ing powers the inherent of a court bution of totality to es- funds in of the light policy tablish its own fiscal public Common- demands and the condition Tate, wealth ex rel. treasury. Carroll v. 442 Pa. following lan- posed point in the Pennsylvania Law the comment
In mentioned, guage in : it is noted that Review above case, Glancey Casey, 447 v. subsequent may pow- inherent be the “Whatever the far-reach- A.2d 812 Pa. (1972), jurisdictions, it ers of the courts in other Tate, supra, ap- in ing doctrine announced public of- is well settled in this state that
pears modified. to have been ficers are entitled to such fees and expressly Mo- costs as are authorized. appears Glancey, “In to have Williams, Judge, Ala. bile far-ranging im- cut back Tate’s more cited, there as 61 So. cases plications. The denied the Glancey court well as section 7255 of the Code of 1923. newly-con- request a fee feed the bailiff be Philadelphia Municipal Court stituted cost, strictly speaking, but it an al- their that mandamus issue to order that regular lowance to him in his addition to paid retroactively to their as- salaries be compensation, and to be entitled to same sumption main- of office. express statutory there must be powerless tained that it was to override therefor.” legislature’s express provision of a period retroactivity. somewhat shorter unquestionably This view is If sound. power courts have inherent to deter- opinion, In its the court all but aban- mine fiscal needs and to order the their inherent-power rhetoric. At the doned paid, surely power same then this same time, inconsistently, same it somewhat should be accorded to the executive branch position held to its that the though even possesses this branch no ma- duty, had a in constitutional even the ab- chinery of payments. its own to order such express provi- sence of the constitutional In their people given' wisdom the provide obtaining, sions theretofore legislative branch power and au- compensation ‘adequate’ judiciary. to the thority appropriate public monies. compensation necessary Such in or- Without the centralization of preserve separation pow- der to branch, one and if each govern- branch of ers.” ment fiscally independent, considered may, But appears be that as it this court though and executive branches “Independ- give have refused to are without money, to tax and raise ence Judiciary-Inherent Power” idea then it can be said with certitude that fis- scope evidenced several of cal chaos day would follow as follows cited and cases relied on the decree night. of the court below. We hold therefore that the court County Capanes, Jefferson below erred ordering the governing So. restaurant owner had body of Morgan County put into effect sued assumpsit for the Jefferson the salary scales set for secretaries in the cost of meals furnished to a bailiff attend- budget proposed by judges. ing jurors kept ordered together. to be Judgment in the lower court was Power to secretarial salaries arising out fix plaintiff. judgment was reversed the Act authorizing Judges this court. From the citations of authori- the Eighth, Judicial employ Circuit to appellee ties the brief of the restaurant secretaries, and salaries, fix owner, apparent argument approval the County Governing vigor was made with that such costs were Body. recoverable on the basis of the inherent power of a court to expenses incur all nec- Counsel for appellee argue further *9 essary for holding the and the dis- that the action of the court below in order- charge duties. ing This court dis- county the governing body put to into approval required by the of him salaries as the stat- the scale of effect secretarial by merely ute fully ministerial.” by warranted fixed the court was authorizing Act the provisions the significance phrase As to the the “to Judges the employment of secretaries approved by the this court Governor” This Act has Eighth the Circuit. Judicial wrote: opin- this beginning set at the been out It so, be set out. does again too, Legislature ion and will not might “And the employ secretaries judges authorize the to required have to the counter- Governor salaries, approv- fix their but with the sign Attorney certificate as General’s body. county governing form, al of the signifying a matter of noth- mere fact, ing in meaning but until that shall contends that appellee Counsel for the argument of some support the Act to since authorizes fix drawn from circumstances or extrinsic secretaries, such lan- salaries of the conditions in view of which the act guage clearly legislative a intent evidences passed, have been it deems best in place this the hands of the function assign ‘approved phrase to the fixed judges, and if the amounts meaning Governor’ which it carries reasonable, pre- judges are and there is a viz., to the understanding, common sumption judges’ findings in favor of the intended, precedent was as a condition regard, then burden is payment, to evoke the Governor’s of- otherwise, county governing body to show expenditure, ficial sanction his phrase showing and absent such “with judgment commendation and that it was approval county governing public good. The court does not body” creating must be considered way see its clear to definition of the part mere ministerial on the duty phrase which exclude the right would county approve governing body to the sala- judgment Governor to exercise ries as fixed judges. approving discretion in or disapproving expenditures to him.” submitted Admittedly, argument supported by a number of the cases cited the de- A closer analogically case Gardner v. cree. Stevens, Ala. So.2d 904. There a provided statute whenever it however, think, doWe that the con- proposed cemetery to locate a located clusion inis accord with decisions of jurisdiction county, application aof this court. county would be governing body made to a Henderson, ex Daly State rel. Gov- application who turn would refer ernor, an 74 So. Act au- county health investiga- board of Attorney thorized the General to incur in- standpoint. tion from a sanitary Upon vestigative expenses, expenses such to be completion investigation, of such the coun- paid upon certified account of the Attor- ty report board of health would its find- ney General, approved by to be the Gover- ings county body governing and “ei- nor. approve The Governor refused to approve disapprove ther applica- or account expenses, petition for such and a tion.” governing Thereafter compel mandamus payment body grant deny appli- “shall either or filed. Demurrer peti- was sustained to the cation, giving weight reaching due ei- appeal, tion. On this court affirmed. The ther expressed conclusion views court stated that: the county board of health.” only question county governing body “The we need to consid- of Mobile er at this application time is whether Governor denied an to locate cemetery approve disapprove discretion or after Mobile the coun- ty accounts character, approved of this board whether of health had the loca- *10 310 ap- plain sought compel ignore cannot mean to Courts
tion. Mandamus statute, Moody, body. ing of a v. 283 proval by county governing Ott Ala. 288, 177, any indica petition denied. The de- 216 and absent for the writ was So.2d contrary, tion to the words a statute will cree was affirmed. accepted in given meaning generally be appeal appellant On contended everyday usage. Interna popular, State v. approval by county the statute made 448, Co., Paper tional 276 Ala. 163 So.2d merely a ministerial act governing body 607; Co., v. Lamson 269 State & Sessions application approved after an had been 610, Ala. 893. So.2d county disposing health. board of In Webster’s New International Diction- contention, of this this court wrote: ary, Edition, “approval” Third the word “* * * agree We are unable to is defined to mean approv- “1. The act of If such were the ing, approbation, with construction. 2. sanction. Certification case, necessity there would be no for fil- acceptability to the (as request application ing any capital with expenditures).” health, county other than the board phrase county “subject approval board of health would to the necessarily of”
not be to ‘investigation right disap limited from a includes the proval. sanitary standpoint.’ statute also We do not legislature see how the provides could report clearly expressed that when is received have more an in health, tention to governing approval by from the make county board body body grant deny ap- governing prerequisite ‘shall either or to establish plication, ing weight giving reaching due salaries of the secretaries as fixed expressed judges. either conclusion the views is nothing There en county tire context board of health.’ This any statute imposing clearly seems to limitation Legis- indicate that the on the county gov erning body lature approve, intended to vest discretion in disapprove or body deny governing application salaries. approved sanitary
even if it were from a would, therefore, We unjustified standpoint.” limiting plain intent of the statute. While those courts which take the view rule has applied same been re- that the “subject words approval of” spect approving security bonds and are limited power given to another held be a matter of discretion on the to “fix” statute, salaries in the same part of the approving authorities. Baker we consider it persuasive more to conclude Denniston-Boykin Co., v. 407, that the true intent 148; Harris, parte So.2d Ex 87. Ala. place in the governing body, body appropriates public monies, Many of the courts of our sister states say-so the final disposition of such have construed “subject the words funds, and thus centralize in legislative approval” phrases, or similar as has this body a function lawfully traditionally court. Avery See County, v. Norfolk delegated body to that Mass., legislature. 598, 707; 181 N.E. McCarten v. Sanderson, 407, 1108; 111 Mont. 109 P.2d Denial Motion Recusal Brown v. City Newburyport, 209 Mass. 259, 504; 95 N.E. Harris v. Board of Edu- Section Title Code Alabama cation, 328; 216 N.C. 4 S.E.2d Snider among other things any judge forbids State, 178; 206 Ind. Fuller N.E. any court to sit in pro- cause or Univ., Board of 21 N.D. 129 N.W. ceeding in which he is interested without 1029; Baynes v. Bank of Caruthersville the consent of parties record, entered of (Mo.App.), 118 1051. S.W.2d put in writing. *11 disquali hold, statutory causes of therefore,
The We that the mo of the tion judge judges are not exclusive of a recuse fication themselves on the same sub principles granted law should have been common and its refusal judge ought is that no was error. ject, of which one where, any other interest or
to act
connection,
In this
we note that of the
cause,
partial to one
supposed to be
he is
cases cited in
appealed
here
decree
Pitts,
Ala.
Smith v.
suitors.
from, Smith v. Miller
(Colo.); Noble
Burke,
20; Bryce
Probate
36 So.
County Council v. State (Ind.); Commis
Nor
Judge,
presiding
question
pro-
was not raised in the
words,
In other
we have here a show
ceedings below, nor was it
raised
cause order issued
judges,
three
brief
appellants.
filed
upon
based
they
evidence
themselves had
gathered,
and a
one
decree
An amicus
curiae
limited to the
judges,
based
same
evidence.
suit,
issues
parties
made
to a
and is
appears
Under the
circumstances
below,
sues not made in proceedings
nor
inference that could be drawn is
appellant,
raised
brief of
in
cannot be
judges, individually
and collective-
jected
by any
into a review
action on the
ly,
hardly
impartial
could
be considered as
part of the amicus curiae. Alabama-Ten
arbiters,
lacking
nor
interest
nessee
City
Natural Gas Co. v.
of Hunts
tendency
natural
of which would be to cre-
ville,
619;
275 Ala.
153 So.2d
Ander
ate bias in
correctness of
favor
Smith,
son v.
JONES, specially. concurs two (28a) of the Code. The then
of the circuit determined that one secre-
*12
tary
adequately meet their needs.
could
FAULKNER, J.,
HEFLIN,
J., and
C.
salary
employee
deter-
The
of
dissent.
by cooperative
mined
discussions between
County
judges
the
Commission.
and the
himself.
BLOODWORTH,
recuses
J.,
increased,
As
the workload
the court
of
her
secretary
employed and
second
coopera-
was fixed under the same
specially).
(concurring
JONES, Justice
arrangement
and
judges
between the
tive
opin-
majority
pre-
the
My
County
Cooperation
with
the
concurrence
Commission.
the de-
of
single
years.
issue
the
vailed for
ten
ion
limited to
over
Paramount
of recusal.
the motion
nial of
A
the
third
was added to
circuit
impar-
the total
justice is
system
any
of
by
the
in
third
1971. A
secre-
judgment
sits in
tiality
of the court
employed.
tary was
of
appearance
controversy. The
any
of
is fair-
important as
virtually as
fairness
meantime,
system
the
a merit
with
ingredi-
the essential
of
ness itself. One
job descriptions
county employees
for
de-
high
is the
judiciary
an effective
ents of
veloped.
County
began to
The
Commission
citizen-
respect accorded
level of
judges’
employees
treat
secretaries as
those
of
Except
impartiality
ry.
County
Commission and took
in act
judge, both
role
occupy the
who
position
judges
that the
shouldn’t decide on
respect neces-
the level
appearance,
and
duties, qualifications
and
salaries
judiciary
and effective
sary
strong
secretaries,
but this should be done
system
essence
It is the
will fail.
County
rep-
others. The
Commission
is suf-
or bias
position of interest
resentatives
personnel sys-
from the state
of a
disqualification
cause for
ficient
survey
tem
employees
to make a
raise and insist
right
judge, and the
judges
and related salaries. The
afforded
must be
disqualification
the causes
surveyors
job descriptions
with
participation of
zealously guarded.
responsibilities
outlines of the duties and
attempted
selection
appellees
employees.
ignored
their
in
These were
salaries,
secretaries,
fixing of the
survey.
outcome
natural interests
and their
budget making
When
time came about
disqualified the
clearly
litigation
following
survey,
Commis-
proceeding
in the instant case
judges
sion
Presiding Judge
advised the
The mo-
adjudication
an
of the matter.
proposed salary
schedule submitted
granted.
have been
should
tion of recusal
accepted
would not be
and that the
paid
court’s secretaries would be
as Clerk-
por-
remaining
that the
strongly
I feel
Typists at
pro-
a much
than
lower rate
opinion is
unfortu-
an
majority
tion of
posed and at the same rate as certain other
judicial administra-
step backward
nate
county employees. The Chairman of the
separate
crippling
blow
tion and
County Commission,
January
concept
three branches
of our
equal
position
took the
that he had the
complete agreement
I am
government.
compensation
fix
dissenting
expressed
with the views
judges
must abide
his decision.
It is
Heflin.
clear that the
opinion of Mr. Chief
desired to continue
Justice
approach
holding
the fix-
Henderson was
cooperative
based on
towards
following:
ing
but the
Commis-
of the salaries
position.
arbitrary
Thus
sion assumed
by petition
1. The
was brought
case
battle lines
drawn.
were
mandamus. The lower court sustained de-
and,
petition.
opinion
ap-
murrers to the
The relator
disagree
majority
I
pealed.
therefore,
respectfully
many
dissent
In the event there was discretion
part
Henderson,
set
of Governor
reasons hereinafter
out.
properly
demurrer was
This is
sustained.
because of the
long standing
well-set-
OF STATUTE
CONSTRUCTION
that,
tled
rule
whereas the courts man-
recites,
opinion
sub-
compel
damus
an executive officer to
stance,
appellees
(Circuit Judges)
perform
act,
a mere ministerial
Tennessee
*13
language
contend
the
of Section
Moore,
& C.
v.
R. Co.
“Admittedly,
court,
argument
support-
effect,
this
2.
The
concluded that
ed
number of the
cited in
the
a
cases
the
as the
Governor
chief executive
the
decree.
state
judgment
was to exercise
and discre-
approving
tion in
disapproving
or
the ex-
however,
think,
do not
“We
the
penditures submitted to
That deter-
him.
conclusion is
accordance with the de-
upon
following:
mination
based
the
cisions
this
court.”
(a)
give
otherwise
be to
To hold
would
position the
support
majority
To
Attorney
a
to the
General
cases,
rely on
Alabama
ex rel.
two
State
chief
excess
that exercised
the
Henderson, Governor,
Daly v.
199 Ala.
state;
executive
the
428, 74
(1917),
So. 951
and Gardner v. Ste-
vens,
(1959).
(b)
So.2d
hold
make the
To
otherwise would
my opinion,
study
executive,
In
a careful
of these
chief
whom con-
sup-
cases
reveals
these cases do not
emphasis lays
stitution
bur-
port
position
majority opinion.
den
are
seeing that
laws
executed,
faithfully
marionette to
a
Henderson,
petitioner
In
sought
a
by string
a
in the hand of
moved
compel
Writ of Mandamus to
the Gover-
another.
nor
approve
detailing
a
ex-
certificate
penses
by petitioner
3.
doing
legislative
while
A determination of
intent
incurred
meaning
“approved by
investigative
Attorney
work
for the
words
Gener-
particular
pursuant
al
giving
Attorney
to an
Governor”
based on
act
act,
language
relationship
expenses.
be-
General
to incur such
Attorney
tween
and the
question
The
General
Gov-
act in
that such ex-
stated
ernor,
legislative history of the
penses
paid
and the
are to be
certificate of
on a
However,
says,
account,
opinion
act.
in sub-
prop-
Attorney
General
stance,
meaning
a
erly
to,
and sworn
with such cer-
itemized
if
different
support
than the
approved
argument
some
other
tificate to be
the Governor.
application, giv-
grant
deny
case
a
or
either
or
peculiar circumstances of
weight
conclu-
ing
reaching
either
history, then
due
legislative
different
expressed by the coun-
interpretation.
sion to the views
support
would
a different
ty
of health.” Title
Section
board
legislative
4.
court looked
as amended
Alabama
Code
peculiar circum-
history
found that
(Recompiled 1958).
to meet the Gover-
stances of amendments
earlier veto
following
nor’s
his
objections
phrase
that the
ei-
court held
“shall
position pertain-
supported the Governor’s
clearly
deny
application”
ther grant or
ing
approval
his
meant.
to what
legislative
indicated a
intent to vest discre-
body
ap-
tion in the
if
governing
even
of Hen-
instant case
rationale
plication
approval
has to be submitted
position.
judges’
circuit
supports
derson
sanitary
the board of health from
are constitutional offi-
circuit
standpoint.
commission is
statu-
cers and the
opinion
torily
body. The majority
created
support
interpret
I do not
Gardner to
makes
officers’
effect
the constitutional
position
opinion.
taken in the
n
surplusage,
task
or at
under
act
Again,
interpretation
given to the lan-
“suggestive”, and
most “ministerial” or
approve
disapprove
guage “either
statutory
of a
secondary
turns the
task
application” is
generis.
holding
sui
func-
agency
primary
and conclusive
into
*14
is
Gardner
to the effect
under the lan-
that
power
a
tion.
the
of
between
In
balance
guage
the
the legisla-
of
statute involved
statutory
and a
coun-
constitutional officer
ture intended
the
ty
position is
that
final determination
majority’s
commission the
the
hardly logical
doesn’t follow
defer-
would be made
the
of Revenue
Board
Perkins
ence rationale of Henderson. Cf.
and Road Commissioners of Mobile Coun-
Corbin,
(circuit
(1871)
316 sion, testimony. Ky. any (1950) S.W.2d 444 offer evidence
dined to
words, the
(Emphasis added).
In other
Thus,
be a
in which
case
appears
to
party
proof is on the
called
proof
burden
pleading but no
there
defensive
ony
Here not
burden
copy show cause.
pleading. A certified
support
met,
meet
attempt
no
was made to
but
resolution of
the order or
the bur
This court has held
when
it.
disapproving the amounts of
Commission
de
particular
fact has
proof of
den of
introduced.
the salaries was not
give
he
party,
fails to
volved
to show
response
court’s “order
fact,
will
its nonexistence
evidence
such
filed
an-
cause”
commission
Phillips, 71
McWilliams
be assumed.
perti-
following
swer
contained
Bank
American National
(1881);
Ala.
nent part:
654, 207
Long, 281 Ala.
Trust Co. v.
&
“Considering the total welfare
standing alone
(1968).
So.2d
income,
obligations
its
County, its
the action
sufficient
affirm
reason
salary sched-
expenditures, the
required
below.
em-
stenographers
clerical
ule
ployees of the other officers
VALIDITY OF COMMISSION’S
paid
by the Com-
required to be
POSITION
stenogra-
and that of its own
mission
employees,
properly
phers and
it declined
Assuming
clerical
the commission did
approve
salary schedule submitted
the factors mentioned-
meet and consider
approval by
Judges
answer,
to it for
the answer
recites factors
its
considered
court.”
which should not have been
decision, as
making
its
the commission
allega-
place
no
denied the
The answer at
explained.
will be
cause.” There
tions
the “order
show
wel-
testimony concerning the total
was no
regard
The law in
state with
testimony
County,
concern-
fare of the
no
power
appears
set-
be well
of counties
concerning
income,
its
testimony
ing
no
its
political
sub-
tled. Counties are said to
testimony concerning its re-
obligations, no
by sovereign power in ac-
divisions created
expenditures
schedule
quired
or the
will and
sovereign
cordance with
exercis-
employees,
stenographers and other
ing
as conferred
them
part
testimony
of its
support of
no
State,
law. Alexander
answer.
no
(1963).
150 So.2d
Counties
duty except
by stat-
inherent
and no
*16
a
short,
total ab-
was there
In
County,
Ala.
Laney v.
249
ute.
Jefferson
part
the commis-
proof on the
sence of
612,
au-
(1947).
32
542
Even the
So.2d
sion,
made to
an effort
there was not even
thority
tax is not inherent in counties—
In
reasonable.
prove that its action was
legislature.
is derived
Newton
pleading
effect,
a
but
there was
defensive
209,
Tuscaloosa,
City
v.
251 Ala.
36 So.
proof.
defensive
no
(1948).
2d 487
issued
the one
A
order like
show cause
Al-
Legislature
case the
In
instant
“an or-
been described as
case has
judges
determined that
circuit
abama
party
appear and show
requiring a
der
as-
stenographic
to clerical or
were entitled
be
should not
why
thing
certain
cause
a
end.
and enacted a statute to that
sistance
requires
party
permitted.
It
done or
provided
The
further
that
ap-
prima
by
case made
meet the
facie
or
judges
determine what clerical
would
complaint or
plicant’s
affidavit.
verified
they
Fur-
stenographic
needed.
services
20,
(e);
37
Motions and Orders
60
§§
C.J.S.
county
ther,
com-
legislature told the
Orders,
Motions, Rules and
Am.Jur.,
37
county
pay the
mission that the
would
sala-
&
Boyd v. Louisville
Sec. 38.”
Jefferson
stenographers.
clerks
ries
such
or
Zoning Commis-
Planning &
County
317
paid
of a con-
ferred claims should be
in full before
in the absence
legislature,
The
voluntary
limitation,
non-preferred
paid.
are
plenary
claims
stitutional
Gunter,
County
Thus it would seem that the
Com-
counties,
A. v.
C.
Y. W.
deal with
mission,
preferred
considering
Matters
these
521,
(1935).
Ala.
legislature, argue, and appellants-commissioners The purposes. public funds Jefferson holds, that the court below 251 Ala. City Birmingham, overruling by committed reversible error (1949). 38 So.2d In motion to recuse. commissioners’ Alabama Code of Title Section view, however, my did not the court below amended, es- (Recompiled 1958) as by overruling err the motion to recuse. preferred are claims tablishes certain appellants argue judges given county shall be against claims Court should recused Circuit non-preferred priority payment over personal themselves because of a interest Gay-Padgett Hdw. claims. In Brown v. matter, and, though urged for the Co., (1914), the So. appeal, first time now on because the court, dealing this section stated: with judges were “witnesses” the case. county obligations debts or “Legitimate faulty contention for several reasons. are (1) are of Those which two classes: law, prescribed imposed by and are First, acting were not in their purely involuntary county; (2) as judicial case, acting roles in this but were merely are those which authorized judicial as an element of the branch of law, county and are assumed government. The statute under discretion, at least as to some measure stenographers are to be hired states time or amount.” judge.” the salaries “shall be fixed judges’ only interest in the case was Clearly by the obligation created fulfilling duty fixing statutory their statute in case at hand did not create Thus, stenographers. the salaries of the spend county mere authorization for hardly interest can be as described money paid “shall statute reads —the “personal,” they acting rather con- were as treasury county out stitutional officers branch against ..” Thus a claim attempting duty fulfill created statute of the first class was created statute. purely at hand —a claim which involun- tary part county. on the Note also procedure employed analogous to expenses 121(2) under Section such a contempt proceeding. that of a preferred courts are listed claims. Thus *17 proceeding judge it is normal for the obligation there is little to doubt that the order was violated who whose pay judicial secretary’s salary enjoys each disrespect try with the case. treated preferred a status. 130, See, Wetzel, g., parte Ala. 8 e. Ex 243 case, In its in such (1942). answer in the instant the 824 as a So.2d Just punish- personal admits that it into a interest in Commission took case has no court, too, voluntary, non-preferred expendi- contempt the ing account a so ap- determining person- tures in that it not hand have would case at no prove salary by the in seeing schedule fixed al interest that the statute requires pre- court. Certainly logic complied with.
318 authorizing saying any
Finally, goes judge made order it almost without at charging cannot of such meals to grounds recusal that additional appeal. any assumpsit in time. The suit was first time on be raised for the against See, Co., by 289 brought Hall the restaurant owner g., v. Howard e. Cox Capanes, holding 35, county. (1972); Thomas In Ala. So.2d 580 265 462, (1963). only public Brook, costs or fees officers So.2d 809 274 Ala. 149 those ex- were to receive were authorized Furthermore, not indi- the record does by primari- pressly law this authorized anyone else judges, or cate that ly of fees and costs because law “[t]he matter, witnesses. were ever called 11, penal.” be held Title Sec- must its Commission, of for reasons The as amended tion Alabama Code of op- own, advantage take declined to County v. (Recompiled 1958); Mobile Wil- to show by the court portunity presented liams, 963 (1913). 61 So. by the court why salary fixed cause sup- only authority cited the court rather, implemented, but case, should not be holding, porting this the Williams merely filed an answer which commission payment of dealt with the collection or de- stated, effect, in the commission power fees inherent and not approve the schedule. clined to re- anything. judgment court do Capanes was one
versed lower INHERENT judicial power THE DOCTRINE OF exercising ordinary its court assumpsit POWER in an and not action power. its the exercise of inherent action of believe that While I Capanes is dicta at Thus statement merely upheld can be Court below best, as evi- weighty and is not even dicta statutory or because basis construction in- by the that the reference to denced fact County Commission of the failure of the power herent an aside is more of rather or- respond the show cause properly to assertion, sup- than a direct and was not der, not this view does share ported by authority. any treat the addition- and feels constrained to powers of the issue the inherent al Capanes is the case cited the ma Thus, think although I do not courts. opinion jority in which this even issue, I necessary I feel must reach gave appearance rejecting inher respond the inher- by stating my views on powers every ent doctrine. almost oth this state. powers ent of the courts of power er case where the inherent asserted, court has been has Despite apparent assertion Chief Mason, upheld. been 71 Larkin v. See County v. Anderson Jefferson Justice prevent power to (1881) (inherent Ala. 227 Capanes, (1938) 637 Ala. 179 So. 235 State, parte 150 process); abuse Ex power doctrine that the inherent effect (power Ala. to or (1907) So. 490 by the recognized courts of stay der of execution convicted mur state, pow- inherent issue of courts’ ; parte Mayor Aldermen derer) Ex things not of a traditional er to do Birmingham, So. Ala. squarely nature never been faced power, irre (1902) (courts inherent Indeed, although one of this court. statute, regu spective of rules for to make principle parties attempted to assert the business; may lation and transaction Capanes, stipulated facts Mc punish contempt); Brown not re- tried and decided do case was (1927) 660, 114 Knight, 216 So. Ala. argument. veal basis for such rules make reasonable (inherent presented bail- question sole was whether ; parte business) Wetz Ex for conduct *18 authority, iff, statutory express without 130, (inher el, (1942) 824 243 8 So.2d Ala. expenses for meals on his own incur could ; parte contempt) Ex punish power ent to No attending jury. himself while
319
633,
System,
Huguley
282
213
upheld
Water
Ala.
the issue has
power
judi
power
strike
(1968) (inherent
provide
So.2d 799
to
cial branch to
for itself when the
parties,
practice statute not
party
third
justice
real needs of
been slighted by
have
State,
; Broadway v.
257
withstanding)
legislative
pre-occupied
branch
with oth
414,
er,
(legislature
visible,
Ala.
321 “It is not essential that there have the O’Coins case provided a summary cover lucid prior appropriation been a of last consideration: obligation an expenditure. is Where “We are mindful that exercise of this duty incurred, it is legally thus power duty inherent is a which must be State, subdivi- political or one its responsibility. spirit borne A of mutual sions, make view that payment. cooperation legislative, among the execu- there must and balances be- be checks tive, judicial departments unques- is departments government tween the is tionably the people’s guaranty best contrary. certainly not never in- It was government. constitutional is It there- department, through tended that one upon fore incumbent ju- members of the acknowledged powers, the exercise of its proceed dicial department cautiously, prevent depart- should able to another and with due pre- consideration for the fulfilling responsibilities ment its from rogatives of the department executive people under the Constitution. and the Legislature, whenever exercise of an judicial inherent power would expressed principles today are “The bring us near sphere de- another recognized only in not Massachusetts but partment.” throughout the omit- (Citations nation.” ted) authority other Capanes besides that majority upon is relies a student convincing These are that cases evidence comment from Pennsylvania Re- Law is doctrine a fundamental element of asserting view that at least one jurisprudence of this nation. It backed from off its stand firm on inherent strange indeed of this that face power. The view of that author that overwhelming body authority, the ma- the Supreme Pennsylvania Court of re- jority by an re- feels bound almost side treated position from the it took in Com- mark, in case in which the issue was one Tate, monwealth ex rel. 442 Carroll v. Pa. actually before the court. 45, 193, 274 974, A.2d cert. den. 402 U.S. 91 S.Ct. 29 138 dis- (1971), L.Ed.2d mentioned, Thus, already the in- once length cussed at majority opinion, in preserve power judiciary herent opinion by court, later Glancey recognized, itself is the issue then becomes Casey, 447 Pa. (1972). A.2d 812 288 power. of such bounds I concur Glancey appear assessment of does not people view the to be sound. this state have not intent to manifested all Al- judiciary free of control. presented Two issues were in Glancey. judges, abama like members of the other (1) Pennsylvania Whether branches, place two must their records be- the exclusive constitutional people years fore term not every (a six judicial to fix compensation, (2) disproportionately greater than the term of whether a certain salary-fixing statute Furthermore, those “close to the people”). unconstitutional. people power have retained amend the document constitution —the There really no issue of inherent from all courts is Glancey the court raised derived. Supreme distinguished Court Glancey from in this Tate manner: restraint, clearly
A final articulated “Appellants rely ex the new to our consti- also Com. article state 51-57, tution, Tate, are 442 Pa. the courts bound rel. Carroll v. responsibil- 274 de (1971), standard cert. of reasonableness A.2d 196-200 nied, ity, ap- L. a standard the courts are asked S.Ct. U.S. is also ply daily (1971). almost context or another. Ed.2d one Carroll [Tate] protected legislative usurpation. presently inapposite that it involved independence legislative body To it was as by a insure appropriation necessary necessary they ad- “shall receive an deemed additional funds equate compensation sys- their services” operation of the court effective *21 compensation in it involve as to declare that the when Philadelphia tem but did not judicial by “fixed law” shall not be “diminished salaries.” ”’ during their in continuance office.” Pennsylvania the court noted that issue, is- On the second the retroactive power the fix Constitution had vested to sue, the that the was court held statute judicial compensation the in again being pow- within the years, limitation on the over 180 the constitutional— legislature, er of the and the retroac- compen- legislative power being that such tivity severable, and if clause was not even “adequate.” sation must be con- Previous was, appellants it it help would not “adequate,” the word stitutions contained pay since its would mean no back removal but the 1968 Constitution did not. Thus at all. Supreme Court of that state took in word opportunity Glancey read the Thus, holding all can seen as Glancey be “adequate” back into the Constitution: is gives that when the constitution a branch an power, exclusive and that that, appellants agree “We with the power branch exercises its in man- such a though even the Constitution of 1968 ner opera- that does not interfere with the simply compensa- judicial mandates that branch, tion is of another with- law,’ by be unlike tion shall ‘fixed power really just out to interfere. salutary much wiser and mandates of the concept supporting another case Constitutions of 1838 and separation power, an inher- rather than provided judges which ‘re- should power case, Supreme ent and the Court of adequate com- for their services an ceive Pennsylvania surprised probably to see duty pensation’, it is the constitutional opinion its Glancey interpreted as a obligation legislature, and position strongly of its so modification independence order to insure the stated in Tate. as the (as executive) well government, provide com- branch of reject further would pensation com- adequate in amount and powers doctrine inherent of a responsi- mensurate with the duties and ground on the ppwers that to find certain judges To do bilities involved. inherent the courts would mean that very any less violates the framework branch certain executive would also have government. our constitutional form power permitting inherent construing years ago, Almost result in this would cause financial chaos aptly stated: Constitution state. I do not share view. “adequate requiring an ‘The mandate not appear body There does be for “serv- compensation” provided law extant as to power the inherent is as im- required ices” those general, executive branch. executive dimi- perative prohibits its as that which by granted is limited consti- during of- nution their continuance tution or statute: as the obligatory first as fice. last, equally it from the springing right “It of executive officers government established
great frame of all named the constitution exercise leg- paramount law, neither powers properly belonging to the ex- islators, at lib- judges are governors, nor department. ecutive It was for disregard. erty to ... “However, provision in constitu- for the people and not safety of the powers, tions as to as were distribution of latter that the the judges benefit of Hyneman being Professor in his on the state article bu- power of to the executive reaucracy officer, government is declara- democratic made specified vested in specific following observations: tory does not confer empowered and, except powers; representative legislative “The assem- constitution, executive officers indispensable bly is an feature of demo- authority or legislative without act government today past. cratic as in leg- beyond limits established by grabbing It was first to ad- islature. king policy, vise the then to veto the * * * * * * king’s proposal, propose finally “Governor, magistrate or The chief public policy and decree enactment of governor of state been said to *22 people statutes that of England rep- the bear to the state similar to a relation got resented Parliament control of president bears the which the government. The failure inabil- However, president the United States. ity sturdy to establish rep- stubborn dignity manifestly higher is an officer of princi- resentative lawmaking bodies is a power and of than that more extensive pal explanation why of the common man state; possessed by governor of a the has not been able get a firmer control is president and whereas the vested government over in European countries. power the states federal executive the so, Even the first of act the dictator of the pertaining functions to the executive our era was destroy rep- [Hitler] power among are of- distributed several assembly resentative and to remove a ficers, governor whom the is the most of primary opposition source of organized * ** prominent. governor has to his will. prerogative powers, no but confined to powers the exercise of those conferred country “In our own lawmaking on him the constitution and statutes.” power firmly was lodged in Congress by Constitutional Law 167. § C.J.S. the federal constitution. The President power, shares the but the construction My colleagues forget consistently given the constitution allows development that the thrust of An- of power him no to decree low on his [sic] glo-American constitutional law has been authority except specified own in certain power to limit the of the executive branch situations, only impor- one of which is and to independence judi- of secure tant —the act as command- ciary. attempts first From the to restrain er-in-chief of the armed forces. royal symbolized prerogative, by Mag- courts are to be found. tion na Charta, state, executive this country twin threads drafting and the Constitution of independence of restraint Constitu- tested tive and the administrative branch in hand is to “The [*] way [*] time-honored and set up keeping [*] representative [*] the chief execu- [*] experience- assem- [*] bly to them. exception, control Without Restraint of the desire executive every nation that any pretense makes at independent for an judiciary compel- were having popular government depends on ling reasons issuance the Decla- an assembly elected to restrain guide Independence. document, ration of That if not to control the chief executive and itself, symbolic of freedom recites: bureaucracy. As noted above the “He (King George executive [the downfall of absolute monarchies ac- dependent on III)] has made his complishedby the parlia- establishment of will alone the tenure of their offices ;ments and one of very first moves and the payment of their salaries.” destroy dictator legisla- summarized Bureaucracy His conclusions and era. Hyneman, body.” tive as language in his follows: System, La.L.Rev. Democratic (1945). independence strongest is the “Judicial tyran- against safeguard the exercise power state, scope to live men who want nical to be has been viewed executive law, than under it. rather above constitution. by the granted as as extensive concept as un- separation powers under deciding a case as- founding fathers derstood essentially Constitution system existence of a sumed the its of 1901 as the Constitution same of whatever free from outside influence powers, separation concerning statement source, and fur- and from kind whatever follows: stated assumed that individual ther each even from be free coercion would prerog- us, governor has no “With his own brethren. He must find warrant
atives. act. every official for his law written % ij{ jfi jjt appoint offi- no more He my mind, independent judici- “To conferred, than cers, expressly when ary perhaps the charac- most essential senate, iswho president *23 of has society. long ex- teristic of a free From justice of the chief legislative, or perience practicing attorney, as a a trial depart- court, judicial iswho this appellate leg- now a judge, judge, an to our con- go back : when we ment and islator, ample opportunity have I state, laws, from in this stitutions appreciate safeguards observe and government of state beginning separation powers embodied in the of poli- been the present, we find it has our wisely doctrine so formulated power appointing this cy to distribute forefathers. departments of the among the several Notwithstanding developments, the these true, may It state ... separation powers doctrine of would has been invested governor prohibit judici- either the or the no power, but share of this greatest ary interfering from constitutionally with a declared policy or has been principle granted power. Opinion executive See him. inherently belongs to power Justices, 285 So.2d fact that remark that And we (Judge Fred (1973) Folsom in which case) appoin- constitutions, assigning all our felt anti-nepotism statute specifi- power governor, tive the governor’s interfered with constitution- officers cally designated particular power al and held the statute could not argu- applied, cogent it whom furnishes validly power. limit such While there people regard ment that the not did little doubt that the probably executive has power be- necessarily inherently as power the inherent protect its constitu- independence, tional McDonald, 101 longing to him.” Folsom case illus- Fox v. trates that the machinery for the exercise Ala. (1893). So. 416 power of such system under our Similarly parallel development ju- system itself. independence dicial In has been described. respect Problems with legality to the article, Separation
his of Powers: Judicial constitutionality any part action on the Independence, Contemp.Prob. 35 Law & of the executive and the reasonableness 108 (1970), Senator Ervin traces the Sam thereof are matters to be determined development judicial independence from the courts not “on theory judi- Montesquieu, Aristotle to federal to the ciary any way is in superior to the other constitutions, present and state and to the departments, co-ordinate solely but on the reorganization . . . must en- mental theory that judi- state’s [courts] system. paramount cial By the constitution as the force a vote of almost two-to- Am.Jur.2d, one, people . Constitu- approved law . a constitutional Law, tional amendment (new judicial 104. article) which § proclaimed on December 1973 as that financial chaos will The statement Amendment No. 328 to the Alabama Con- upholding the inherent result stitution, 1901, and which laid to rest doctrine, applicable especially as system that served well the 18th and supported system, is not real- centuries, 19th but which was strained thinking. appropriation bill for istic economic, political and social condi- appropriated less year 1973-74 fiscal tions of the 20th century. On the old operation for the than one-half 1% foundations, a judicial system modern system com- judicial the entire state when erected, been designed to meet the needs appropriations for pared to the total state people of this state in quarter the last governmental services. century, of this and to continue to be re- sponsive to kaleidoscopic challenges of majori- summary, appears In that the modern-day life on into century. the 21st ty’s purported rejection of the doctrine of totally inherent unwarranted. The citizens of this state now demand give way reasons for action un- modern, responsive, judicial effective sys- scrutiny, holding and the runs der close tem which does cling to the ideas and weight of au- overwhelming counter concepts of a pristine period more when country. thority taking in this problems judicial administration were majority places this court in the stance slight. today’s For in complex society, just position being the court in unique procedure is the handmaid of justice, so nation, research, my according to to too, judicial administration is the handmaid scope reject, severely or so limit the as to of system. effective *24 The inde- rejecting have the effect of the doctrine. pendence judiciary of the to do those Arizona, Colorado, I have cited cases from things judicial realistically sepa- cannot be Indiana, Massachusetts, Michigan, Mis- rated from the need for in- administrative Montana, Nevada, souri, Jersey, New Ore- dependence if the people mandate of the gon, Pennsylvania, and Texas which have for a system justice more effective is to wholeheartedly upheld the doctrine. This be fulfilled. exhaustive; is not in- list intended to be escape underly- One can some of deed, Supreme of Mas- Court Judicial ing themes of the new constitutional sachusetts cites additional cases O’Coins framework for comparison courts when a Illinois, Kentucky, Arkansas, New is Ohio, provisions made York, between the of the old and No case Wisconsin. judicial judicial article and the new appellants article. been cited either or the of the underlying One themes is a constitu- clearly rejects the doctrine. tional mandate Furthermore, judicial that the compelledby branch ex- the result is not ercise independence. more precedent administrative binding from this state. inescapable Thus the conclusion that the is underlying Another theme is that majority’s clearly runs view on issue Supreme Court should make the initial de- judi- counter to the mainstream of modern operating termination of the rules for the thought cial to thwart efforts and tends system, judicial subject only specific re- independent judiciary. ensure an straints, in order to ensure a more effec- operation tive businesslike of the entire NEW ARTICLE JUDICIAL system. many judi- legal court and While 18, 1973, people cial scholars in felt that On December of this Alabama “rule- power” overwhelmingly approved making previously state existed in funda- judicial sys- equal separate but ture for the entire unified powers of the inherent tem, probate and mu- exclusive of courts government, highest judicial branch of nicipal added) (Emphasis courts.” considera- this state evidenced past pertaining to the restraint ble “adequate The constitutional mandate powers. that the In order exercise of and in the first sen- financing” reasonable judiciary, branches of as well the other quote expansive tence above more “rule-making that government, understand than and “adequate the clause reasonable clearly power” vested within the Su- appropriations?’ and there is no limitation Court, preme judicial article mandated specific responsibility of this to a branch make highest that the court of Alabama provided” in following the be clause “shall of administration promulgate and rules Further, sentence. it seems clear first govern- courts, all as well as the rules adequate financing and reasonable procedure. Regardless ing practice system of this state a constitu- as a whether this construed constitution- priority tional else in the nowhere Con- re- al transfer of clearer “adequate rea- stitution do words powers, statement inherent there can be relationship appear sonable” to financ- judicial article no doubt new ing appropriations.1 mandatory places function Su- preme operating rules Court to make the judicial fi- anticipated it is While spe- judicial system, subject for the geared har- nancing be will to climate 6.- cific restraints and checks. See Section mony cooperation legisla- between the nevertheless, 11 of Amendment 328. judicial branches, tive and requirement there is a constitutional by a The instant case has been decided adequate for the financing and reasonable un- majority of the members of this court judicial system be entire unified shall provisions judicial old arti- der provided even if the should and, not, therefore, cle should consid- be. complying remiss in its constitutional precedent arising binding ered for cases unlikely event, mandate. such an under new framework. constitutional duty peo- to ensure the fulfillment of the newly-adopted judi- ple’s responsibility Section 6.10 of will becomes the following provi- judicial cial contains article branch.
sions : language Section 6.10
“Adequate financing and reasonable newly-adopted article evidences *25 judicial system the underlying entire unified shall be theme that the fiscal needs of ap- provided. Adequate judiciary neglected. reasonable This and are not to be propriations by legisla- shall be made keeping with the first mentioned judicial provided. proposed Adequate appro- 1. new article in the The and reasonable by priations legislature Alabama Constitu form recommended be shall made legis judicial system, and tional Commission introduced unified entire exclusive following language probate municipal lature contained of courts and courts. legislature Section 6.10: The receive recommenda- shall budget appropriations Justice] “He shall submit for the tions for trial courts [Chief and recommendations courts Governor from administrative director of legislature appropriations appellate for state and for the courts from each such judicial system, of exclusive court.” entire unified interesting legislature, probate note courts.” It language changes impose this section man- all of the made substantial appropria- datory obligations designed pertaining fiscal and fiscal to nurture matters greater judicial independence. the need for tions. noteworthy judicial passed legislature article as It further of the Section 6.10 people people approved language which no ratified following pertinent language: longer requires the submission recommenda- contains appropriations financing “Adequate tions for to the Governor. and reasonable judicial system be shall unified the entire judiciary theme squarely this state act faced the issue of inherent independently more in administrative mat- pertaining judicial administrative mat- ters than it has past. judicial The I ters. must ask the question— inevitable branch bring cannot about a more effective why? justice financially
administration of if it is I can my conclude that learned hamstrung. col- leagues of majority burning have a de- “adequate use of words and rea- gain sire to again judicial the accolade of designed prevent sonable” is also abuses. restraint. In most their judicial deci- danger of abuse can be further con- sion-making undertakings heartily I concur through trolled effective rules of adminis- that their judicial restraint is deserving of O’Coins, Following tration. its decision praise, but in the instant case the reliance Supreme Massachusetts Court on this salutary misplaced. Judicial attitude is One promulgated designed prevent rules must distinguish judicial administrative provide abuses as well as to method function judicial from the substantive deci- by any governmental agen- review affected sion-making function. Too much restraint Burke, cy. See Powers of The Inherent in exercising administrative re- Courts, 1974). (Jan. sults in opera- Judicature ineffective non-businesslike courts, tion of the assumption un- article, judicial new build- while prerogatives warranted by governmental ing on the foundation of the old Constitu- agencies of other government, branches tion, departure embodies such a 'crumbling and the pillars judicial judicial document emphasis its ad- independence. judicial While restraint independence adequate ministrative the substantive decision-making function is financing and reasonable of courts that commended, judicial be restraint to- concepts, including contrary the one voiced wards the jus- effective administration of case, majority in the instant are tice should condemned. proceed erased. This must to view keeping tasks in administrative The words of Chief Mar- Justice John people. with the mandate of the just shall are as meaningful today as when uttered fifty years over one hundred and CONCLUSION ago: greatest scourge “The angry an ungrateful heaven ever inflicted Regardless appli- life the short sinning people ignorant, is an cor- cability opinion, I cannot Debates, rupt, dependent judiciary.” or a majority. remain silent while the applicable statute to Virginia construes the 1829-30 Convention Constitutional task judges’ primary make the circuit Mar- (Remarks of Chief Justice John nullity; grants to a thereunder a shall). final determination commission the its ad- Hopefully, when the this court will exercise amount of the secretaries’ *26 that it language indicates tasks, rule-making functions ministrative check; dis- only have a reasonable should responsibilities the new and other under of Hender- regards the deference rationale spirit independ- judicial article with a in an places officers son and constitutional Otherwise, ence effectiveness. statutory offi- relationship untenable people’s of a crescendo orchestration cers; effort where upholds a defensive justice will administration of an effective proof; present without pleading was dirge. a funeral turn into claims; preferred disregards the law of minority single places in a Alabama FAULKNER, forego- J., in the concurs position ever-growing of state status to the ing dissent. which have throughout the nation courts foregoing dis- concurs
JONES, J., portion deal- exception of the with the
sent recuse.
ing with the motion to him- BLOODWORTH, (recusing Justice
self). serving the fact that while
In view of Eighth Cir- circuit Judicial part helping Alabama, had a cuit I Act in passage of the
draft and secure Code 125(28a), Tit.
question [Sec. amended], hereby I as last
Alabama myself.
recuse
294 So.2d
Walter et al. JENKS
Bryant Henry et al. JENKS
SC 297.
Supreme Court Alabama.
May 2, 1974. Blackburn, Bay Minette, appel- B. J.
lants.