74 So. 387 | Ala. | 1917
— These three cases together present for decision'these questions:
(1) Can the Legislature of this state provide two prosecuting attorneys, one for the judicial circuit and one for the county, where the circuit and county embrace the same territory — one a circuit solicitor, a constitutional officer, and the other a county solicitor, a statutory officer, but one expressly authorized by the Constitution ?
(2) If so, can the Legislature make the county solicitor the chief prosecutor for the circuit and the county, in effect making the circuit solicitor an assistant to the county solicitor ?
(3) If the Legislature can do both, has it in fact and in law done so as to the Tenth judicial circuit and Jefferson county, which embrace the same'territory,'and in which Joseph R. Tate is circuit solicitor and Hugo L. Black is county solicitor?
(4) Have both Black and Tate, as solicitors, the right and power to appoint deputies and assistants, the one, as is authorized in the act known as the General Solicitors’ Bill (Acts 1915, p. 817), the other, under various local acts for Jefferson county, as was authorized by law at the date of the passage of the General Solicitors’ Bill (September 25, 1915) ?
The fact that the act, or the proviso of the act, in question (section 10, Acts 1915, pp. 718, 823) provides that the county solicitor shall be the “chief prosecuting officer of the county,” necessarily implies that there are other solicitors; and it does not deny to such other solicitors all right, or relieve them of all duty, to prosecute in the circuit or county of Jefferson. If the act said in terms that the circuit solicitor should assist the county solicitor in prosecutions in the circuit or in the county, it unquestionably would not have been unconstitutional or objectionable. Such was, and had been, the effect of the provisions of the local statutes for Jefferson county for a number of years prior to the passage of the statute in question. It is true that the local statutes did not require the circuit solicitor to assist the county solicitor in prosecutions in the circuit court for Jefferson county, but in the criminal and possibly other courts; but there were then few, if any, criminal cases prosecuted in the circuit court, or probably all of the duties of the circuit solicitors were taken from him and the circuit court and transferred to the criminal court. But the duty and right of the circuit solicitor to prosecute the same; and like cases in the criminal court, were imposed upon him by the local statutes, and therein he was named as the
The only effect as to the general statute in question as to. these two officers was to preserve their status quo, as fixed by various local statutes, until the expiration of their terms of office, and until the first Monday after the second Tuesday in January, 1919. Both were elected in' the same manner, on the same day, for the same terms of office, and by the same electorate; and their territorial jurisdictions were the same, and they prosecuted or performed all of their duties, or practically all of them, in the same courts. The circuit solicitor was not elected solicitor of the circuit court exclusively, but he was elected solicitor of and for the circuit, the same territory which composed the circuit court it is true; but his rights, powers, and duties were not confined to the circuit court by the Constitution or the statutes. Neither was the county solicitor elected solicitor of the criminal, city, or county court; he was elected solicitor of the entire county. It is true that his duties were not by the. local acts expressly extended to the circuit court, for the reason, as we have shown, that there were but few, if any, duties for any solicitor to perform in the circuit court for the Tenth circuit, because that court’s jurisdiction in criminal cases had been conferred largely, though probably not solely, upon the criminal and other courts of Jefferson county. There was therefore no necessity or occasion for assigning duties to the county solicitor to be performed in that court; and even the local acts had required the circuit solicitor to assist the county solicitor in the criminal, and probably other courts of Jefferson county.
He is not elected solicitor for the circuit court of that particular circuit, but solicitor of the circuit or territorial subdivision prescribed by the Legislature.
In the case of Diggs v. State, 49 Ala. 311, 320, 321, the court, speaking through Brickell, J., in his first published opinion, says: “If a county solicitor is not a ministerial officer, it would be difficult, if not impossible, to define his character; all the duties with which he is charged pertain to the protection of the
We cannot hold that the proviso attached to the last section of the general solicitors’ bill, which merely provides that until 1919, the county solicitor of a certain county forming a given circuit shall be the “chief prosecuting officer of the county,” •destroys or attempts to destroy the office of circuit solicitor for the same county; certainly not, when the effect thereof is merely to preserve the status quo which prevailed in the county, and had prevailed for several years and even before either of the solicitors was elected, and which status is preserved only so long as the present terms of the two officers continue. The sole and apparent intent and effect of the proviso was to preserve the status quo as to prosecutions in Jefferson county until the terms of the incumbent solicitors shall expire.
The statute in question is full of such provisions, and so are many other statutes of this and other states. This is even a favorite mode, used in the Constitution, to work the repeal of statutes, or the extension of the terms of office of incumbents, as was done or attempted to be done in the last clause and proviso or exception in the solicitors’ bill in question. Acts 1915, pp. 817, 823. Section 1 of the act in question, by a similar proviso, in terms makes certain county and city court solicitors not only chief prosecuting officers of certain counties, but makes them sole circuit solicitors; this in cases in which no circuit solicitors resided in the circuit, and where the county or city court solcitor was elected by the qualified electors, so as to conform to constitutional requisites. Other sections and clauses of the same statute make county and city court solicitors deputy and assistant circuit solicitors until 1919; in the last proviso, appellee was made chief prosecuting attorney for the county, instead of sole solicitor, deputy solicitor, or assistant circuit solicitor. If the Legislature had the power to do the one, we see no reason why it could not do the other. We see no constitutional objection or prohibition against the Legislature’s providing two or more circuit solicitors, if it sees fit, and providing that one of them shall be the chief prosecuting attorney. While the Constitution expressly provides for but one solicitor to the circuit, yet it does not prohibit the Legislature from creating another. The language of the Constitution, as to the solicitor for each circuit, is very similar to, if not identical with, that providing for a judge of each circuit; and we have held that two or more judges could be provided for one circuit. The Legislature, on two or more occasions, provided for two judges of the Tenth judicial circuit, and the present statute provides for ten judges of the Tenth, and for two or more judges of several other circuits. Of course the passage of such other statutes as to circuit judges does not make the statute in question valid, but it does show repeated legislative construction of the constitutional provisions. And many were passed after decisions of this court upholding this class of enactments. The language of the Consti
We have above set out the provisions of section 167 of the Constitution as to solicitors.
If two or more judges can be provided for each circuit, we see no constitutional objection to providing two or more solicitors for each circuit. To hold that each judicial circuit could have but one judge and one solicitor, would practically destroy our present judicial system. Several of these statutes have been recently construed, to the upholding of the system to the extent that it is involved by this and like statutes; and we see no reason for declaring the present statute unconstitutional 'in whole or in any part involved on this appeal. We are constrained to hold that the proviso in question is valid, that it did not have the effect to deprive the circuit solicitor of his office, that both he and the county solicitor are prosecuting officers in the circuit and county in question, and that there is no constitutional inhibition against making the county solicitor the chief prosecuting officer, nor against authorizing him to supervise, direct, and control the prosecution, providing the enactment does not deprive the circuit solicitor of all or substantially all of his duties and powers as such solicitor. As before stated, it was expressly — and we hold correctly — decided that the Legislature could provide for two solicitors in the same circuit; and that merely providing that one shall be the chief prosecutor, with authority to direct and control prosecutions, does not deprive the other of his office, so long as there are duties and powers left for him to perform as such solicitor, and this is expressly done in the same act which makes the county solicitor chief prosecutor, among which is the power to appoint three assistants and deputies, if he so desires, and this power cannot be controlled by the county solicitor, and is not inconsistent with the county solicitor’s being chief prosecutor.
The Code provisions, in connection with the provisions in question, with the act consolidating the courts in Jefferson county into a circuit court and transferring all criminal prosecutions from the criminal court of Jefferson county into the circuit court, and with the local statutes providing for a county solicitor for Jefferson county (which the proviso in effect says are not repealed until 1919), undoubtedly confer the right and impose the duty upon the county solicitor to prosecute in the circuit court until 1919.
These and other reasons lead us to hold that the proviso in question must be construed to make the county solicitor of Jefferson county the chief prosecutor of criminal cases, in the circuit court until January, 1919. First, the proviso says in terms, that he is to be the ‘chief prosecuting officer of the county.” The statute, as a whole, was dealing with the subject of solicitors or prosecuting officers for the entire state. At that time a statute had been passed consolidating all the courts of record of the state, with some exceptions, into circuit courts. The local statutes for Jefferson county and the Tenth circuit, which were one and the same in territory, which provided prosecutions of criminal cases in that circuit and territory, provided that the county solicitor and the circuit solicitor both should prosecute in the criminal court, the county solicitor as chief and the circuit solicitor as assistant; but few, if any, criminal cases were brought or prosecuted in the circuit court; but in January, 1917, all of these courts in which the chief, in number and importance, of criminal cases were brought and prosecuted were to pass out of existence, and the work was thereafter to be done in the circuit court, for which ten judges were provided, two of whom were to preside over criminal'matters, and all these criminal cases were to be transferred to the circuit court.
Surely the Legislature would not have said that the county solicitor should continue to be the chief prosecuting officer for the county of Jefferson, if it was not intended that he should prosecute in the court into which all of the then pending cases were to be transferred and subsequent ones were to be brought. There would be no work for him to do, no duties to perform, except in such petty cases as might be brought in the inferior
It is agreed by counsel for appellant that the local acts for Jefferson county under which the county solicitor claims to exercise his same power and discharge his same duties as prosecuting officer for the county did authorize, or enjoin the duty upon, the county solicitor to appear in or prosecute cases in the circuit court. It is true that none of these local laws, so far as we find, did expressly authorize or direct that the county • solicitor should prosecute in the circuit court; but, as we have shown, such a provision was useless, because there were few, if any, criminal proceedings in the circuit court, in consequence of which fact the circuit solicitor was directed to assist the county solicitor in prosecutions; and these local statutes were not then, and are not now, the sole respository of authority over the functions and duties of the county solicitor. The general repository of such authority — authority over the duties and jurisdiction of all solicitors — is to be found in the Criminal Code (vol. 3, c. 291, §§ 7778-7804). Section 7781 of the Code expressly makes it the duty of all county solicitors, as well as of circuit solicitors, to prosecute all criminal cases in the circuit court, at both general and special terms, and provides a penalty for failure to attend special terms had for the trial of criminal offenses. It also requires both circuit and county solicitors to prosecute, or defend, all civil actions in the circuit, or city court, in which the state is interested. The county solicitor is a county officer, expressly authorized and recognized by the Constitution, though one not required, as are circuit solicitors.
As was said in Lusk’s Case, supra, the object and purpose of the proviso to section 167 of the Constitution, as to county solicitors, was to remove any doubt as to the right or power of the Legislature to transfer any of the duties of the circuit solicitor to any other officer, or, in other words, to permit any county solicitor to be authorized to prosecuted in the circuit courts, otherwise, the court demonstrated, that proviso as to county solicitors would perform no office; that before the adoption of the proviso,
We are of the opinion that it was not the intention to take from either of the present officers the rights, powers, or duties conferred and imposed, to prosecute in the circuit court until 1919. It is merely provided that until 1919 the county solicitor shall be the chief prosecutor for the county, just as he was at the passage of the act; and it is expressly provided that until 1919 he shall continue to exercise the same powers which he was then exercising. Neither did this proviso take from the circuit solicitor any of the powers or rights which he then had, unless it had the effect to place him under the supervision and control of the county solicitor, in the circuit court, as he had theretofore been, in the criminal court. Technically speaking, this change was probably effected by the proviso; but practically the proviso wrought no material change.
We therefore hold that both the circuit solicitor, Tate, and the county solicitor, Black, are authorized to prosecute criminal cases in the circuit court for Jefferson county — the Tenth judicial circuit — until 1919; that the county solicitor is made chief prosecutor for the county of Jefferson, which includes all of the Tenth circuit, and also for the circuit court provided for that circuit; and that, because the proviso of section 10 of the act in question, together with section 7781 of the Criminal Code, authorizes the county solicitor to prosecute in such circuit court; that making the county solicitor chief prosecutor does not deprive the circuit solicitor of his office, and is not subject to any other constitutional objection; that the circuit solicitor now has the right and power to. appoint deputy solicitors, as is authorized by section 6 of the act of September 25, 1915 (p. 817) ; that such deputies, when so appointed by the circuit solicitor, have the right to
Neither these questions nor the arguments relating to them have been overlooked; but it would extend the opinion to too great length to treat.them separately. Suffice to say, we find no constitutional objection urged, to be well taken.
It therefore results that the appeal in the quo warranto proceeding is affirmed, and that the applications for mandamus are denied.