| Ala. | Jun 29, 1911
Lead Opinion
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
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.
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 So. 61" court="Ala." date_filed="1909-12-16" href="https://app.midpage.ai/document/city-of-ensley-v-simpson-7364944?utm_source=webapp" opinion_id="7364944">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
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
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.
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
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.
Rehearing
On Application for Rehearing.
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.
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.
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
The Louisiana case relied upon by appellee (reported as Bouanchaud v. D’Herbert, 21 La. Ann. 138" court="La." date_filed="1869-02-15" href="https://app.midpage.ai/document/bouanchaud-v-dhebert-7187670?utm_source=webapp" opinion_id="7187670">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" court="Tex." date_filed="1875-07-01" href="https://app.midpage.ai/document/willis-v-owen-4892413?utm_source=webapp" opinion_id="4892413">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" court="W. Va." date_filed="1873-07-19" href="https://app.midpage.ai/document/bridges-v-shallcross-6591399?utm_source=webapp" opinion_id="6591399">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.