Powers v. State

| Ala. | Jun 15, 1842

COLLIER, C. J.

The act of January, 1829, “prohibiting certain persons from exercising the powers of Justice of the Peace and Constable in this State,” imposes a penalty of forty dollars upon any person elected a Justice of the Peace, who shall perform any official act after his removal from the Beat in which he was elected; and gives an action for its recovery, one half of which is to be appropriated to the use of the party aggrieved, and the other half to the poor of the county. It is needless to consider whether the imposition of a penalty by statute, is tantamount to a prohibition of the act, and whether the act done is so absolutely void, as to confer no right or impose no obligation, if the argument of the Attorney General is sustainable.

This argument we will now examine. The act of 1840, which has been cited, enacts, “That all Justices of the Peace who have been, or shall hereafter, be elected, within the limits of the city of Mobile, shall, and may, be authorized to reside, hold their office, and transact official business in any Captain’s Beat within the limits of said city; any law to the contrary thereof notwithstanding.” Now here is a direct abrogation of the act of 1829, so far as it applied to the city of Mobile, and Justices of the Peace are authorized to reside in, and do business in any part of the city, no matter in which one of its- beats they may have been elected. Both the second and third pleas al-ledge, that the Justice of the Peace taking the recognizance in question, was elected to that office in Beat No. 3, for the 89th Regiment of the Militia of this State. We are ¡not informed that Beat No. 3, is not in the city of Mobile, and must rather intend that it was, in the absence of any allegation -on this point, upon the principle that the pleading must be taken most strongly against the pleader.. It cannot be objected that the act of 1«40 is private, and should have been brought to the view of the Circuit Court. Without admitting such to be its character, it is quite enough to say, that all private statutes as printed with the general acts of the Legislature, may be used as evidence of the law. [See act of 1811, Aik. Dig. 283, §139.]

This view is decisive to show, that the pleas which were demurred to, do not sufficiently negative the want of authority in Stringer, as a Justice of the Peace to take the recognizance. The judgment of the Circuit Court is consequently affirmed.