50 Ala. 549 | Ala. | 1874
A material question, pressed for our consideration, by the argument of the counsel for appellants, is the constitutionality of the special statute, by which the administration of the estate of William C. Wright, deceased, was transferred from the court of probate of Tallapoosa, the county of his residence at the time of his death, to the court of probate of
The 9th section of the 5th article of the constitution of 1819, operative when this statute was passed, declared: “The general assembly shall have power to establish, in each county within this State, a court of probate, for the granting of letters testamentary and of administration, and for orphans’ business.” It is now insisted, that “ this section of the constitution made it impossible for the legislature to take away from any probate court it might thereunder establish, any jurisdiction which this section of the constitution had assigned to such court, as soon as so established.” If this proposition as stated were conceded, we do not see how it would affect the question here presented. The jurisdiction conferred by the constitution on the court of probate is the granting of letters testamentary and of administration, and for orphans’ business. This constitutional jurisdiction is exclusive in the court of probate; and the exercise of such jurisdiction by any other court, after the legislature established courts of probate, is impliedly inhibited. The grant of jurisdiction, by the constitution, is as plenary to one court of probate as to another. The constitution does not assume to prescribe the cases, nor the territorial limits, within which particular courts of probate shall exercise this jurisdiction. Under the constitutional grant, the jurisdiction of no one court of probate is exclusive of that of another. So far as dependent on the constitution, all courts of probate are of concurrent jurisdiction. The cases, and the territorial limits, within which this jurisdiction is to be exercised, and to become exclusive, are of
If the legislature, in establishing courts of probate, had simply declared, in the language of the constitution, that there was established in each county within this State a court of probate, for the granting of letters testamentary and of administration, and for orphans’ business, not declaring and defining the cases in which administration could be granted by each of the courts, nor confining them, in the exercise of their jurisdiction, to prescribed territorial limits ; could it be said, that thereby the jurisdiction of each court was circumscribed to the county of its location, and was there exclusive ? that the constitution, irrevocably and immutably, without regard to the convenience, necessity, and interest of the citizen, committed to the court of the county of the residence of the decedent exclusive jurisdiction of the administration of his estate ? We think it manifest, if the statute establishing courts of probate had simply pursued the language of the constitution, the jurisdiction of each court, not only as to the subject-matter, but as to the cases in which it could be exercised, would have been concurrent, and coextensive with the limits of the State. Then, the limitation as to the cases, territorial limits, and the mode in which this constitutional jurisdiction shall be exercised, are of legislative creation, and capable of enlargment or diminution, at the will of the legislature. No right of the citizen is invaded, because he is by a subsequent law committed to a jurisdiction of equal dignity and authority, for the hearing and determining of his controversies, compelled to observe and administer in the same mode the same laws as the tribunal having jurisdiction when the right accrued, or the controversy arose.
The general principle on which this, and all state courts, jDroceed, is that the grant of legislative power, by the state constitution, is a general grant of all the legislative power residing in the people as a sovereign community, subject only to such limitations as are expressed in the constitution of the State, or in the federal constitution. Ex parte Dorsey, 7 Port. 293; Dorman v. State, 34 Ala. 216. A state constitution, indeed, properly speaking, is not a grant of power, but an instrument of restraint and limitation upon power already plenary, so far as it respects the functions of government, and the objects of legislation. State v. Reid, 1 Ala. 612; Dorman v. State, supra; Stein v. Mayor, &c. 24 Ala. 391; Alabama & Florida
The frequent enactment of similar statutes, the recognition of their validity by every department of the government, and the magnitude of the interests which must rest on their hitherto unquestioned validity, would compel us, if we doubted, to affirm the constitutionality of the enactment. For, though it may not be true in all cases, it is certainly true when a statute conforms to a long-continued recognition and acquiescence of every department of the government; when private rights have grown up and multiplied upon this recognition, for courts 44 to doubt is to be resolved ” in favor of its conformity to the constitution.
It is objected that this is a special statute,' exempting a particular administration from the operation of the general law, and is, therefore, unconstitutional. There was no prohibition in the constitution of 1819, against special legislation. It depended for its validity on the same principles pertaining to general legislation. If it interfered with no private right, did not disturb past transactions, and was not usurpation by the legislature of power committed to some other department of the government, it was not an objection that the operation of a legislative enactment was removed to one, or a few individuals, only.
The argument that, if this special statute can be maintained, it will be within legislative competency, by similar statutes, to divest the whole jurisdiction of the court of probate of Tallapoosa county, and concentrate it in the court of probate of the comity of Montgomery, seems to us more specious than solid. In answer to a similar argument pressed on this court, it has been said: 44 It is sufficient to say, that the general assembly has not in fact done what it is suggested it may hereafter do. We are here to decide actual, not possible cases. All that we can, or ought to do, is to determine whether this particular law is constitutional. We are certainly not prepared to hold that a legislature shall not exercise a constitutional power, because some succeeding general assembly may exercise it beyond the proper limits. That would be to say, that a lawful power must not be used at all, because it may be abused.” Dorman v. State, 34 Ala. 245; State v. Reid, 1 Ala. 612. It is not a just or reasonable presumption, that the legislature will ever pass
As matter of pleading, these averments are wholly insufficient. ’ They are not clear, distinct allegations of the facts, on the existence of which depends the right to the decree sought. If the sufficiency of the petition had been put in issue by demurrer, or assailed on error, judgment against it must have been pronounced. Then, as has been said in this court, all intendments would have been indulged against the pleader. When the proceedings ripen into a decree, and are collaterally assailed, and rights of property have attached, the rule is changed, and every reasonable intendment is made in favor of the validity of the decree. All questions of pleading, which the court had the right to decide, are conclusively adjudicated, and
The act of February 9, 1852, now incorporated into, and forming section 2128 of the Revised Code, provides a speedy and summary remedy, in the court of probate, for correcting mistakes in the description of lands sold under the orders and decrees of that court. This ye regard as declaratory of a legislative intent that such mistakes shall not operate the invalidity of the sale. The evidence in this case is full and uncontroverted, that the lands ordered to be sold, and sold, were the lands in controversy. The sale has been followed by peaceable and. uninterrupted possession by the purchasers for near fourteen years. The purchase-money was paid, and received by the adminis
The objection, that it does not appear that the lands sold were situate within the jurisdiction of the court, if of any force, is not sustained by the record. The order of sale expressly directs the administrator to sell such of the lands as lie in Tallapoosa county, at the late residence of the intestate, in that county, and such of the lands as lie in Montgomery county, at the door of the court-house, of that county. This we regard as affirming that the lands ordered to be sold are within those two counties.
Testing the recitals of this record by the presumptions extended to judicial proceedings, when collaterally drawn in question, we feel justified in declaring, that it appears from the record that depositions, proving the necessity of sale, were taken
Our conclusion is, the decree of the chancellor was correct, and it is affirmed.