| Ala. | Jan 15, 1871
This is a proceeding by mandamus on the part of the judge of the city court of Selma, to compel the treasurer of the county of Dallas to pay the salary of said judge of said city court, which he claims has accrued to him since said court has been abolished by act of the general assembly of this State.
- In the court below, judgment was given in favor of the petitioner, Judge Corbin, and a mandamus ordered to issue in conformity to the prayer of the petition. Prom this judgment Perkins, the treasurer, appeals to this court, and here assigns the action of the court below as error.
The main facts, upon which this grave case depends, are these : A court, styled the city court of Selma, was established by an act of the general assembly of the insurgent government, existing in the State of Alabama during the rebellion, which purports to have been approved on December 9th, 1864. — Pamph. Acts 1864, p. 146. The petitioner, John S. Corbin, was elected judge of this court at the February election in the year 1868, at the time of holding the general elections in this State in that year; that afterwards, by an act of the general assembly of this State, approved on August 5th, 1868, said election of said judge of said city court of Selma was ratified and confirmed.— Pamph. Acts 1868, pp. 79, 80. Thereupon, said Corbin was duly commissioned, as required bylaw, and after being duly qualified, entered upon the discharge of the duties of said office of said judge of said city court; and afterwards, on December 11th, 1869, by further act of the general assembly of this State said city court of Selma was abolished. — Acts 1869-70, p. 6, No. 6. At the same session of the general assembly at which said city court was abol
The section of the enactment of 1864 fixing the salary of the judge of said city court is in these words: “ Sec. 11. Be it further enacted, that the salary of the judge of the court hereby established, shall be three thousand dollars a year, and shall not be diminished during his continuance in office, and shall be payable quarterly at the treasury of the county of Dallas, upon his order, out of any moneys unappropriated; and for the remuneration of said county for payment of the same, the fees, fines and forfeitures in all criminal cases in the city of Selma shall be paid into said treasury to the full amount of said salary, in preference to any other appropriation of the same.” — Pamphlet Acts 1864, pp. 146, 148, § 11.
There] are two questions which arise on this record, the decision of which must settle the fate of this application.
The first involves the validity of the enactment establishing the city court of Selma. The other involves the power of the general assembly to abolish a judicial office in this State.
It is scarcely now a question capable of doubt, that said city court was not established by any lawful legislature of the State of Alabama, and that it was not a court established under the present constitution of this State, or under any constitution, entitled to be enforced in this tribunal. The law of its creation was an invalid enactment. — Texas v. White, 7 Wallace, 700; 44 Ala. 554" court="Ala." date_filed="1870-06-15" href="https://app.midpage.ai/document/noble--bro-v-cullom--co-6507855?utm_source=webapp" opinion_id="6507855">44 Ala. 554. Said act was never a law of this State, and it has not been kept in force by the rightful State government. — Acts 1868, page 7. But it has, on the other hand, been repudiated and repealed. — Pamph. Acts 1869-70, p. 6, No. 6, p. 170, No. 165. It was not a court created by the rightful sovereignty. Its officers are not, then, under the protection of the constitution now in force in this State. The ratification of the
It is said by Woodbury, J., in the opinion of the court in the case of Scott v. Jones, that “ the argument is a fair one. that as the territorial government wak still in operation in Michigan for some purpose, no new political organization could take place within its limits, which was capable of passing valid laws or charters of incorporation, without a previous sanction by Congress, under the third article of the constitution.” — 5 How. 343" court="SCOTUS" date_filed="1847-03-18" href="https://app.midpage.ai/document/scott-v-jones-86425?utm_source=webapp" opinion_id="86425">5 How. 343, 423, at top. This just and safe principle was laid down without dissent in 1846. It was afterwards more directly affirmed, in 1848. in the ably argued, well considered, and important case of Luther v. Borden, (7 Howard, 1, 38, 39.) And in the recent case of Texas v. White, supra, it was settled that the government in a State may be unconstitutional, as well as a law, and as such it can not pass valid enactments. This was, I believe, the unanimous opinion of the court. — 7 Wall. 700" court="SCOTUS" date_filed="1869-04-12" href="https://app.midpage.ai/document/texas-v-white-88061?utm_source=webapp" opinion_id="88061">7 Wall. 700, 732, at bottom, and dissenting opinions. The enactment of the rebel government of Texas authorizing the endorsement of bonds, in controversy in that case, was not obnoxious to the constitution of the Union or the constitution .of the State. This was not pretended. But it was pronounced invalid, because the legislature which passed it was “ unlawful.” The bonds in controversy in that case were the property of the State of Texas, and the rightful government of that State had authority to dispose of them in such manner as the lawful legislature of the State might think fit. And the act giving power to do this would have been lawful had it originated from a lawful authority. The same is the case here. The law establishing the city court of Selma did not proceed from a lawful authority. It was therefore void. It was enacted by a power hostile to the Union, and hostile, also, to this State as a part of the
But aside from this objection.to petitioner’s claim, the courts of this. State are not only divided into courts superior and inferior; they are of different characters. Some are established by the constitution itself — that is, by the people. They do not depend on legislative enactment for existence. They are created at the same time and in the same way with the legislature itself. They are of the same grade in the sovereign power. They are a constituent branch of the government itself. The government under the constitution is not complete without them. These are the “ senate, sitting as a court of impeachmentthe “ supreme court,” the “circuit courts,” the “chancery courts,” and the “ courts of probate.” — Const. Ala. 1867, Art. 8, § 1; lb. Art. 6, § 1. These courts do not owe their existence to the legislative power, and the legislature can not dispense with them, or abolish them. They are emphatically the people’s courts; and they proceed directly from the sovereign will. They constitute a co-ordinate and independent department of the government, and there is no other department of the government that can abolish them. The people alone, in whom is the ultimate sovereign power, can do this. They are each, in their way, constitutional elements of the State sovereignty itself, as represented in the government.
There are other courts, called in the constitution “inferior courts of law and equity,” which “ the general assembly may from time to time establish.” These latter courts derive their existence from legislative enactment. They are the creatures of the law-making power of the State. A city court, under our constitution, is of this latter character. It is established by the legislature. It is the creature of a statute law. All statute laws are subject to repeal, except when they create a contract. Here that is not the case. The establishment of a court is not the creation of a contract. Then, such a law may be repealed. And when it is repealed all the rights depending on it ex
Undoubtedly, then, the legislature may repeal a statute passed by itself establishing an inferior court. This abolishes the court. And, necessarily, where there is no court there can not be any such office as judge of such court. Such an idea would be a solecism in judicial interpretation. There is no constitutional protection to the salaries of the judges of inferior courts in this State. This protection only extends to the judges of the supreme court, the circuit courts, and the courts of chancery. — Const, of Ala. 1867, Art. YÍ, § 10. And whatever doubt there may be about the legislative authority to abolish such an office, the law allowing and providing for the payment of the salary of a judge of an inferior court may be repealed. In this case this has been done.— Pamph. Acts 1869-70, p. 6 ; ib. p. 170, No. 165, § 17; and cases supra.
It seems, then, free from all rational doubt, that such an office as the judgeship of a city court is a statutory office, and one who accepts it does so with such infirmities as belong to it. If it is subject to be abolished by the repeal of the law creating it, there seems to be little grounds justly to complain that it is one of its incidents so to fail within a period of six years. The establishment of the court originates the office of judge of the court. The judicial power is in the court, and not in the magistrate who presides over it; so that the legislature can not make a judge independent of a court. The legislative power is solely to establish inferior courts, and along with the court the office of judge of such court. The judges who are elected by the people are to be judges of the courts mentioned in the constitution, or such as have been established by law; not judges merely, without courts to preside over. Such judges are unknown to our constitution. — Const. Ala. 1867,
The foregoing views of the constitution and laws of this State, under which the petitioner sets up his claim in this case, lead me to the conclusion that the learned judge erred in his order and judgment in the court below. The judgment of the court below must, therefore, be reversed.
. And this court, proceeding to render such judgment as the circuit court should have rendered, doth hereby order, adjudge, and decree, that the judgment of the circuit court in this cause on the trial below, be reversed, that an order for a rule nisi in favor of the petitioner be denied, that the petition and application for mandamus be dismissed, and that the said John S. Corbin, the appellee in this court, pay the costs of this appeal in this court and in the court below. — Revised Code, § 3502.