State ex rel. Clarke v. Carter, 56 So. 974

State ex rel. Clarke v. Carter

56 So. 974 | Ala. | 1911

Lead Opinion

MAYFIELD, J.

This is a quo warranto proceeding, instituted in the name of the state on the relation of N. R. Clarke, against John E. Carter, seeking that he be required to show by what authority, if any, he is claiming the right to exercise the functions and authority of justice of the peace in and for precinct No. 7 of Mobile county, and that he be restrained from further exercising said functions and powers. The respondent demurred to the petition or complaint, and assigned numerous grounds therefor. The trial court sustained the respondent’s demurrer and dismissed the proceeding, and from that judgment the relator prosecutes this appeal.

The petition, among other things, alleged that the office of justice of the peace, the functions and powers of which respondent was attempting to exercise, had been abolished by a local act of the Legislature, entitled, “An act to establish an inferior civil court in lieu of justices of the peace, for all precincts lying within or partly within the city of Mobile.” — Local Acts 1911, p. .274. It is conceded by respondent, appellee here, that, if this act was passed in conformity with the provisions of the state and federal Constitutions, the re*271spondent has no right to exercise the functions and powers which he is alleged to be now exercising, and that he should be ousted from the office or prohibited from exercising such authority; but it is contended, on the other hand, that if such act was not constitutionally enacted, or would not have the effect to abolish the office of justice of the peace, then the respondent has the right to continue in said office, and the trial court properly sustained his demurrer to the petition or complaint.

Upon this state of the record, it is necessary on this appeal only to determine whether or. not this local statute in question was constitutionally enacted, and whether or not it had the effect to abolish the office Avhich the respondent'claims to hold, and the duties and powers of Avhich he claims to be entitled to perform and exercise.

It is insisted by the respondent that this act is unconstitutional, void, and of no effect for several reasons. The first point of contention is that the act, being a local one, Avas not passed in conformity with the provisions of section 106 of the Constitution, in that the journals of the House and the Senate do not affirmatively shoAv that the notice provided in said section was published, “without cost to the state.”

It is conceded that there Avas an attempt to comply with this provision of the Constitution, and that the notice Avas given and published, but it is claimed that the journals do not show affirmatively that it was so published “without cost to the state,” and that such journals do not shoAv that it Avas published for the length of time required by the Constitution. It is not necessary that the journals should show affirmatively that it was published without expense to the state. The Constitution directs only that the journals must affirmatively sIioav that the bill Avas passed in accordance with the provisions of this section.

*272Moreover, the court judicially knows that there was no law whereby the state could have been required to incur the expense of paying for this notice; and the journal therefore does affirmatively show that the notice was given and the publication had without any expense to the state. The only possible effect of this provision, “without cost to the state,” is to prevent the Legislature from authorizing or attempting to authorize the state to incur the expense of such publications.

As to the length of time during which the notice was published, the affidavit of publication recites that it was “published in a newspaper once a week for four consecutive weeks, ending March 20, 1911.” This certainly conformed to the constitutional requirement as to the length of time. The only reasonable construction which could be given this language is that the period of four consecutive weeks during which said publication was had ended March 20, 1911, and the bill was introduced in the Legislature two days thereafter. This construction is fully supported and sustained by the opinion in the case of Knsley o. Simpson, 166 Ala. 381, 52 South. 61.

It is next.insisted that the act violates section 168 of the Constitution, in that it creates two inferior courts in lieu of the justices’ courts of the city of Mobile, whereas the Constitution authorizes the creation of only one. There is certainly no merit in this contention. In the first place, this act does not create, nor attempt to create, two courts; nor does the fact that other courts have been created for Mobile county and invested with the jurisdiction of justices’ courts render this act void.

Moreover, there is no reason why the Legislature could not establish two courts of inferior jurisdiction in lieu of the justice courts, if it could establish one. One court might be inadequate to properly and prompt*273ly administer the law, and, if two should be required, we see no constitutional objection to the Legislature’s creating two. It was evidently the purpose of the constitutional convention to leave it to the discretion of the Legislature as to Avhether it would establish inferior courts in lieu of justice courts.

It is unnecessary for us to pass upon the question, Avhether that part of the act authorizing the judge of the inferior criminal court of Mobile to act as ex officio judge of the inferior civil court, and giving him compensation for his services violates the constitutional provision against one person’s holding tAvo offices of profit and trust, or that Avhich provides that the compensation and fees of officers shall not.be increased during the term for Avhich they were elected for the reason that, if such provisions Avere invalid, the infirmity would not strike doAvn the Avhole act, nor prevent the abolition of the office of justice of the peace for Mobile county, if the act in question was constitutionally enacted, and did create an inferior court, though the provisions as to the appointment or election of the judge thereof might be inoperative and inefficacious.

In other words, this part of the act, standing alone, Avould neither add to nor subtract from the power of exercising the functions of his alleged office. Because one section or one provision of an act may be unconstitutional and void does not necessarily render the entire statute or enactment void. If the act can be given operation and effect Avithout such void provision, the valid portions of it avíII be alloAved to stand, unless the court is unable to say or to know that the Legislature would have passed the act without the void provision; but the court is relieved of any doubt as to this matter by section 18 of the act in question, Avhich expressly provides that, if any provision of the act shall be- held void, it *274shall not affect any other section or provision of the act. —Harper v. State, 109 Ala. 32, 19 South. 857; State v. Davis, 130 Ala. 150, 30 South. 344, 89 Am. St. Rep. 23; Shehane v. Bailey, 110 Ala. 308, 20 South. 359.

This is likewise true as to other objections urged against the constitutionality of the act, upon the ground that the title was not sufficiently broad to authorize certain provisions contained in the body of it. If such provision should fail, it would not strike down nor render inoperative the entire statute, nor prevent 'the abolition of the office of justice of the peace. These objections go only to' parts of the statute which can neither add to nor subtract from the rights, duties, and functions of the respondent. If, however, we could consider these questions, we are not prepared to say that it is sufficiently made to appear by this record that the enacting parts of this bill as to the extent of the territorial jurisdiction are not embraced in the title of the act, and such parts are certainly germane and cognate to the title.

There is one singular provision in the act contained in section 13 which expressly authorizes the defendant to appeal from the judgments in such court — the statute containing no like express provision with respect to the plaintiff. It is unnecessary, however, on this appeal, for the court to further discuss this question, for the reason that section 3 of the' act provides that the general laws of this state regulating the practice and proceedings of courts of justices of the peace shall be applicable to the said inferior criminal courts. These terms, we think, are sufficiently broad to include the right of appeal from judgments of this court under the same provisions and conditions as for appeals from justices’ courts.

*275Indulging the presumption in favor of the constitutionality of the statute, which we are required to do, we are not willing to condemn the entire statute because of this irregularity or defect, but, on the other hand, will give it that construction which will uphold its constitutionality ; that is, that section 3 of the act preserves the right to appeal from the judgments of such court.

The act contains a number of other irregularities, and shows upon its face that it was not drawn with the cai*e and precision which should be given acts of this kind; yet we find no valid reason which Avould justify us in striking doAvn this entire statute, and declaring it abortive for all purposes. There are a great number of defects as to provisions of sections 13 and 17 of the act, the one going to the right of appeal, and the other to the extent of territorial jurisdiction; but Ave do not think that any of these defects complained of, and which can be raised by these parties on this appeal, are sufficient to render the entire act void.

It is also contended that the act is in violation of section 45 of the Constiution, in that the title contains tAvo subjects. We cannot give our assent to this contention. The title of the act is as folloAvs: “To establish an inferior court in lieu of justices of the peace for all precincts lying Avithin or partly Avithin the city of Mobile.” This title is clearly in conformity with, and not in violation of, section 15 of the Constitution. While the bill does create an inferior court, and does abolish the justices’ courts, yet the declared object and purpose is .to establish the one in lieu of the other, which the Constitution expressly authorizes, and which, therefore, constitutes but one subject, Avhich is clearly expressed in the title.

Finding no objection to this act, nor to any part of it Avhich would render the whole unconstitutional and *276void, or which would prevent the accomplishing of its declared end of establishing an inferior court in lieu of justice courts, we are unable to affirm the judgment of the lower court in sustaining the demurrer to the petition or complaint and dismissing the proceedings. It is conceded by counsel for appellee in this case that, if the act in question was passed in conformity with the Constitution, the respondent has no right to, and should be ousted from, the office of justice of the peace.

The judgment of the lower court, therefore, is reversed; and a judgment will be here rendered, preventing and restraining the said John E. Carter from further exercising or attempting to exercise the functions and powers of the office of justice of the peace in precinct 7 for Mobile county.

Reversed and rendered.

Dowdell, C. J., and Simpson and McClellan, JJ., concur.

Rehearing

On Application for Rehearing.

PER CURIAM.

The only proposition insisted upon as ground for a rehearing is well stated by counsel for the applicant, as folloivs: “The act in question is unconstitutional and void, in that it violates section 280 of the Constitution.of 1901 of the state of Alabama, which said section of the Constitution.provides that no person shall hold two offices of profit at one and the •same time under this state. By referring to the act of the last Legislature which is now under consideration will be found the following provision: ‘Sec. 2. The said court, for the maintenance and exercise of its jurisdiction as conferred by this act shall have all the general powers conferred by law on justices of the peace. *277The judge of the inferior criminal court of Mobile county shall act as the ex officio judge of said inferior civil court.’ ” An inferior criminal court for the county of Mobile was created by the act of the Legislature of 1899 (Loe. Acts 1898-99, p. 1164), which provided for the office of a judge of such court. The act in question, the constitutionality of which is raised, was passed by the Legislature at the session of 1911, and established another inferior court — a civil court — for the city of Mobile in lieu of “all justices of the peace therein,” authority for the enactment being granted by .section 168 of the Constitution of 1901. This act created a separate and distinct inferior court as expressly authorized by the Constitution; but it did not thereby create any additional office, state, county, or municipal. It merely provided, in terms, that other officers — the judge of the inferior criminal court of Mobile county, the clerk of such court, and the sheriff or the coroner of said county —should perform and discharge the duties and functions pertaining to this new court thereby created. It merely conferred new or additional powers and duties, upon the officers named.

If the act in question had created separate and distinct officers, as it did a court, and had provided that no one person should hold one of these offices so created, and another office, a very different case would be presented. But the act, instead of creating any new offices to be filled, abolished all those of justices of the peace, and merely required that the duties and functions (which were of a civil nature) theretofore required of such officers should thereafter be required of and discharged by certain other officers named in the act. It was, in effect,, a consolidation of courts, rather than a multiplication thereof.

*278Tlie Constitution does, in effect, inhibit multiplicity of offices, without multiplicity of office holders; that is, it inhibits one person to hold two or more offices of profit and trust under the state government at the same time; but it does not forbid the consolidation of two or more offices, nor does it prohibit the Legislature from imposing additional duties upon, or clothing with added powers, existing officers, nor from withdrawing certain powers and duties from one office and transferring the same to another (with certain limitations or exceptions not necessary to here mention).

The only two cases relied upon or cited by the appellee we have examined, and these we do not consider authority in this case; but, even if they were such, we would not be willing to follow them against the uniform rule and practice (running through the entire history •of the state) of legislating additional powers and duties, or of transferring powers and duties theretofore exercised or performed by other officers, upon certain existing officers. For example, probate judges in this state have always been required to discharge other and ■different duties than those pertaining to the probate office; and since the Penal Code of 1866 probate judges have been both authorized and required by the Legislature as a part of their duties as probate judges to discharge and perform all or part of the duties of the county courts which were created by that Code. Innumerable local acts to the same effect have been passed. Two Constitutions have been since adopted with these code and statutory provisions in force without any express disapproval of these rules of law, or this practice; and we do not think that such statutes and procedure are impliedly prohibited by the Constitution of 1901.

“Where a particular construction has been generally accepted as correct, and especially when this has oc*279curreil contemporaneously Avith the adoption of the Constitution, or under a Constitution immediately preceding, and by those Avho had an opportunity to understand the intention of the Constitution, or a provision thereof in question it is not to be denied that a strong-presumption exists that the construction righly interprets the intention.- — Cooley, Con. Lim. 67. The Supreme Court of the United States has frequently considered this subject. In Stuart v. Laird, 1 Cranch, 299 [2 L. Ed. 115], decided in 1803, that court sustained the authority of its members to sit as circuit judges on the ground of a practical construction, commencing Avith the organization of the government. In the case of Cohens v. Virginia, 6 Wheat. 264 [5 L. Ed. 257], Chief Justice Marshall said: ‘Great Aveight has ahvays been attached, and very rightly attached to contemporaneous exposition.’ In the case of the Bank of the U. S. v. Halsted, 10 Wheat. 51 [6 L. Ed. 264], Justice Thompson says: ‘If any doubt existed Avhether the act of 1792 vests such poAver in the courts, or Avith respect to its •constitutionality, the practical construction given to it ought to have great Aveight in determining- both questions.’ In the case of Ogden v. Saunders, 12 Wheat. 290 [6 L. Ed. 606], Justice Johnson in commenting upon this subject says: ‘Every candid mind Avill admit that this is a very different thing from contending that the frequent repetition of a Avrong Avill create a right. It proceeds upon the assumption that the contemporaries of the Constitution have claims to our deference on the question of right, because they have had the best ■opportunities of informing themselves of the understanding of the framers of the Constitution, and of the sense put upon it by the people Avhen it Avas adopted by them.’ — See, also, Marti v. Hunter, 1 Wheat. 304 [4 L. Ed. 97]; Rogers v. Goodwin, 2 Mass. 475; State v. May-*280hew, 2 Gill (Md.) 487.” Bridges v. Shallcross, 6 W. Va. 576.

The Louisiana case relied upon by appellee (reported as Bouanchaud v. D’Herbert, 21 La. Ann. 138) is distinguishable from this, in that the act there condemned expressly created a new office — one which did not theretofore exist — and required one person to hold two offices. The Texas case reported as Willis v. Owen, 43 Tex. 41, is distinguishable from this, in that the opinion therein on its face shows that the constitutional provision there held to be violated was materially different from section 280 of - our Constitution, which the act in question is claimed to offend. A very full discussion of kindred questions, if not of the identical one here under consideration, may be found in Wales v. Belcher, 3 Pick. (Mass.) 508; Bridges v. Shallcross, 6 W. Va. 562-599; Sharpe v. Robertson, 46 Va. 518; People v. Leet, 13 Ill. 270, and in the case of State ex rel., etc., v. Burke, 57 South. 879, of this court, at this time in MS. We think these cases announce the correct rule, and accordingly hold that section 280 of our Constitution is not offended by the act here in question.

The application for a rehearing is overruled.

All the Justices concur, save Dowdblu, C. J., not sitting.