139 Ala. 138 | Ala. | 1903
This is a proceeding in the nature of a quo warranto commenced by the State of Alabama on the relation of Elmore Garrett against A. B. Sawyer, and seeks to oust the defendant from office of justice of the peace of Beat 15, Calhoun county.
The petition was demurred to both as originally filed and as amended, and upon the demurrer being sustained by the court, the relator declined to further amend whereupon judgment was rendered in favor of the defendant, and from this judgment the present appeal is taken.
The information as amended alleged that A. F. Mc-Ghee and Elmore Garrett were elected justices of the peace for precinct fifteen (15), Calhoun county, on August the 6th, 1900, and that they duly qualified and were in ducted into said office, and were duly commissioned
At the date of tlie election of said Garrett and Sawyer to the office of justice of the peace, respectively, of precincts fifteen and twenty-one, the city of Anniston, Calhoun county, was divided into four precincts, viz., fifteen, twenty-one, twenty-two and twenty-three. On the 6th day of February, 1901, two acts of the legislature were approved, as follows: “An act to allow justices of the peace of beats 15, 21, 22 and 23 of the county of Calhoun to hold their courts and offices in either of said beats and to have and exercise jurisdiction in either of said beats.
“Section 1. Be it enacted by the General Assembly of Alabama, that justices of the peace in beats 15, 21, 22 and 23 in the county of Calhoun shall be allowed to hold their offices and courts in either of said beats, and shall have and exercise their jurisdiction in either and all of said beats; provided, the provisions of this act do not apply to the notaries public and ex-officio justices of the peace in’the aforesaid beats, except the notary. public and ex-offiicio justice of the peace in beat 15.” “Approved February 6, 1901.” — Acts, 1900-1901, page 787.
“An act to abolish precincts 21, 22 and 23 of Calhoun county, and to dispose of the territory embraced therein, and to prevent the commissioners court of said county from hereafter changing said boundary lines of beat 15 as provided by this act.
“Section 1. Be it enacted by the General Assembly of Alabama, that precincts 21, 22 and 23 in Calhoun county as now established be and the same are hereby abolished, and that the territory embraced within the boundaries of the said precincts be and 'the same is hereby added to and made a part of precinct 15 of said Calhoun county.
“Section 2. Be it further enacted, that the commissioners’ court of said county are hereby prevented from hereafter, changing the boundary lines of beat 15 as created by this act.
It is shown that at.the time of the passage of these acts the relator, Garrett, was a duly elected and commissioned justice of the peace for precinct 15, and was then acting as such, and has been since so acting down to the filing of this information; and that the respondent Sawyer was at the time of the passage of said acts a duly elected and commissioned justice of the peace for precinct 21, and has since the passage of the acts continued to exercise the powers and jurisdiction of a justice of the peace, not only in the territory embraced in the beat for which he was elected, namely, precinct 21, but also in the territory embraced in original beat 15, and has so acted since the first of March, 1902, at which date the last above mentioned act went into effect.
The constitution of 1875, under which the questions here involved are to be determined, provides as follows: Art. VI, Sec. 20. “There shall be elected by the qualified electors of each precinct of the counties not exceeding two justices of the peace and one constable. * * * * The term of office of such justices shall be prescribed by law.” The precincts or beats of a county are territorial subdivisions of the county and in their nature political subdivisions. They may be created or established by the court of county commissioners under legislative authority, or by direct legislative enactment. It is likewise within legislative power to alter, change, or abolish the precincts or beats so established at will, there being no constitutional restriction or limitation on such power. The precincts or beats are definite as to territorial boundaries, and are commonly designated by numbers. Here the legislature by the act last above mentioned, abolished precincts designated and numbered 23 , 22 and 23, and added the territory theretofore embraced in said precincts, to and making it a part of precinct numbered and designated as precinct 15. This was undoubtedly within legislative competency. — People v. Morrell, 21 Wend. (N. Y.) 563; Matter of Gertum v. Board of Supervisors, 109 N. Y. 170.
It is unnecessary "to express any opinion as to construction, if the two acts set out had gone into effect at the same time. But since one of them went into effect on its passage and the other at a date subsequent to ils approval, a field of operation is given to both acts. In such a case “the act taking effect last is as an amendment to the statutes as amended by the act taking effect first.’’ — Harrington v. Harrington, 43 Vt. 649; Endlich Inter. Statutes, § 500.
Here the act last taking effect by necessary implication on the day when it went into effect, operated a repeal of the other.
The respondent Sawyer was elected and commissioned as a justice of the peace for precinct 21. This precinct no longer exists. His election and commission conferred upon him no right to exercise the power and jurisdiction of a justice in precinct 15, and the act first above set out which did extend his powers and jurisdiction to the territory embraced in precinct 15, ceased to be operative when the second act above set out went into effect on the 1st of March, 1902.
Our conclusion is that the effect and result of the leg islation abolishing precinct 21, abolished the office of justice in that precinct.
It follows from the foregoing views that the judgment of the trial court must be reversed, and the cause will be remanded.
"Reversed and remanded.