Caylor v. State

• Decision Date: 21 March 1929
• Docket Number: 3 Div. 865.
• Citation: 121 So. 12,219 Ala. 12
• Parties: CAYLOR v. STATE.
• Court: Alabama Supreme Court

121 So. 12

219 Ala. 12

CAYLOR v. STATE.

3 Div. 865.

Supreme Court of Alabama

March 21, 1929

Petition of the State of Alabama for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Caylor v. State, 121 So. 9. Writ denied.

See also, 21 Ala. App. 627, 111 So. 195; 118 So. 145; 118 So 147.

Charlie C. McCall, Atty. Gen., and Hill, Hill, Whiting, Thomas &amp Rives, of Montgomery, for the State.

R. E. L. Cope, of Union Springs, and Rushton, Crenshaw & Rushton, of Montgomery, for appellee.

FOSTER J.

The opinion of the Court of Appeals, as expressed in this case on this and former appeal (21 Ala. App. 627, 111 So. 195), and in the case of Higginbothan v. State, 20 Ala. App. 476, 103 So. 71, and Spears v. State, 21 Ala. App. 129, 106 So. 72, is that section 4491 of the Code means that the venue of the prosecution there referred to is in the county in which there is a breach of duty to support the wife and (or) children. A careful consideration of said Code section discloses that it is in form a legislative direction as to what shall be held as to the place of the commission of an offense, rather than the venue of the prosecution. Section 4891 fixes the venue of the prosecution of a crime in the county where it is committed unless otherwise provided. Section 4491 provides that "any offense under this chapter shall be held to have been committed in any county in which such wife [or, etc.] may be at the time such complaint is made."

It will be observed that the terms of said Code, § 4491, direct what shall be "held." Is this a direction as to what shall be a judicial opinion of the court? If such be its meaning, it is an encroachment by the legislative body upon the judicial department of the government, and in violation of the Constitution. Hackett v. Cash, 196 Ala. 403, 72 So. 52, Fleming v. Moore, 213 Ala. 592, 105 So. 679. If its meaning is a declaration that the offense is committed in the county where the wife and (or) children be when the complaint is made, it undertakes to fix the place of the commission of an offense, rather than a direction to the court as to what decision it will reach.

The meaning of such a declaration as the one we have in hand was considered by this court in Lindsay v. U.S. Savings & Loan Ass'n, 120 Ala. 156, 24 So. 171, 42 L. R. A. 783. In that case there was considered an act of the Legislature stating that premiums, fine, or stock taken to represent premiums for loans made by a building and loan association shall not be "treated" as interest, nor subject to the usury laws. This was held to be an effort of the Legislature to construe a previous act in a manner not expressed therein, which the court declined to do. So that it was a decision of the court that, in so far as the enactment related to past transaction, the Legislature exceeded its powers, and assumed powers which the Constitution committed to the judiciary exclusively. As to future transactions, it was the creation of a legal status rather than a mandate to the courts.

Such is the interpretation of a declaratory statute in Cooley on Const. Lim. (8th Ed.) pages 189, 191, 192, where it is said: "It is always competent to change an existing law by a declaratory statute; and where the statute is only to operate upon future cases, it is no objection to its validity that it assumes the law to have been in the past what it is now declared that it shall be in the future. *** To declare what the law is, or has been, is a judicial power; to declare what the law shall be is legislative. *** And if it appears to be the intention to establish by declaratory statute as rule of conduct for the future, the court should accept and act upon it, without too nicely inquiring whether the mode by which the new rule is established is or is not the best, most decorous, and suitable that could have been adopted." We do not think that section 4491 is a legislative direction to the judiciary, but rather a legislative enactment, though in the form of a declaratory statute.

But it is not within the power of the Legislature to fix the county in which an offense was committed, when it was in fact not committed in such county, either in whole or in part, and, when properly interpreted, such is not the effect of section 4491. If it be conceded that section 6 of the Constitution would not prohibit the Legislature from fixing the venue of such a prosecution as the one here involved in a county different from the one in which it was committed, it has not here undertaken to fix the venue of the prosecution, but the place of the commission of the offense.

The Court of Appeals has held, for the reasons set forth in its opinion, that the offense in question is committed, if at all, in the county where there is a breach of duty owing by the husband and (or) father,...