Dudley v. Birmingham Ry., Light & Power Co.

• Decision Date: 02 February 1904
• Citation: 139 Ala. 453,36 So. 700
• Court: Alabama Supreme Court
• Parties: DUDLEY v. EX PARTE BIRMINGHAM RY., LIGHT & POWER CO. BIRMINGHAM RY., LIGHT & POWER CO.

36 So. 700

139 Ala. 453

DUDLEY v. EX PARTE BIRMINGHAM RY., LIGHT & POWER CO.

BIRMINGHAM RY., LIGHT & POWER CO. ^[a1]

Supreme Court of Alabama

February 2, 1904

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Petition by the Birmingham Railway, Light & Power Company for writ of mandamus against E. A. Dudley, clerk of the Bessemer city court, and application, filed originally in the Supreme Court, by the Birmingham Railway, Light & Power Company for mandamus to the judge of the Bessemer city court; being two cases submitted together. From a judgment awarding the writ Dudley appeals. Affirmed. Writ awarded conditionally against the judge of the Bessemer city court.

These two cases involved the construction of the same statutes and the decision of the same question, and were therefore submitted together.

The proceedings in the case of E. A. Dudley against the Birmingham Railway, Light & Power Company were instituted by a petition filed by the Birmingham Railway, Light & Power Company, addressed to the judges of the city court of Birmingham, in which it was averred: That at the time of the passage of the act of the Legislature of Alabama approved September 26, 1903, there was pending in the city court of Bessemer, Jefferson county, Ala., a civil cause wherein the petitioner was defendant, and one Mrs. M. F. Smithson was plaintiff. Said action was brought to recover damages for the burning of a house of the plaintiff, alleged to have been caused by the negligence of the defendant. That on October 2 1903, the petitioner filed in the city court of Bessemer a petition, addressed to the judge thereof, asking that said cause be removed to the city court of Birmingham for trial as provided by said act of the Legislature authorizing the transfer of cases from the city court of Bessemer to other courts of like jurisdiction in the county of Jefferson. That the judge of the said city court of Bessemer denied said petition, and refused to allow said cause to be transferred. It was then alleged in the petition filed in the present cause that, upon the filing of the petition in the city court of Bessemer, it became the duty of the clerk of the city court of Bessemer to forthwith deliver to the clerk of the city court of Birmingham the original papers in said cause and also a certified copy of the docket and minute entries of the city court of Bessemer pertaining to said cause; that E. A. Dudley, who was the clerk of the city court of Bessemer, did not make the delivery of said papers, etc., to the clerk of the city court of Birmingham, and thereupon the petitioner called upon and requested said E. A. Dudley, as clerk of said city court of Bessemer, to forthwith deliver to the clerk of the city court of Birmingham the original papers in said cause, and a certified copy of all the docket and minute entries of the city court of Bessemer pertaining to said cause; that said Dudley, as clerk aforesaid, declined and refused to comply with the demands of the petition. The prayer of the petition was that a writ of mandamus or other remedial writ be issued to said E. A. Dudley, as clerk of the city court of Birmingham, requiring him to deliver said original papers and the certified copies in said cause. The respondent, E. A. Dudley, demurred to the petition; setting up in various ways the unconstitutionality of the act of the Legislature approved September 26, 1903, providing for the transfer of civil causes in the city court of Bessemer to other courts of like jurisdiction in Jefferson county. This demurrer was overruled, and, upon its being admitted that the facts averred in the petition were true, judgment was rendered granting the relief prayed for, and ordering a writ of mandamus to be issued in accordance with the prayer of the petition. From this judgment the appeal in the present case was prosecuted, and the judgment of the court in overruling the demurrer and in awarding the writ of mandamus is assigned as error.

In the case of Ex parte Birmingham Railway, Light & Power Company, the proceedings were had upon a petition for mandamus being filed originally in the Supreme Court of Alabama by the Birmingham Railway, Light & Power Company, addressed to the chief justice and associate justices of the said court. In this petition it was averred that there was at the time of the approval of the act, on September 26, 1903, providing for the transfer of civil cases pending in the city court of Birmingham to other courts of Jefferson county, pending in the city court of Bessemer a civil action wherein the petitioner was defendant, and one Veto Lasalo was plaintiff; that after the passage of said act, to wit, on the 2d day of October, 1903, the petitioner filed his petition in writing, addressed to the judge of the city court of Bessemer, asking that said cause be transferred to the circuit court of Jefferson county; that the judge of the city court of Bessemer declined to order the removal of the cause as provided for by said act. The petitioner prayed that the original writ of mandamus, or other appropriate remedial writ, be issued, directed to the judge of the city court of Bessemer, demanding and requiring him to vacate and annul his order declining to remove said cause to the circuit court, and directing the clerk of the city court of Birmingham to send the papers and the certified copy of the docket and minute entries to the circuit court of Jefferson. The judge of the city court waived the rule nisi, and filed his answer, setting up that said act of the Legislature providing for the transfer of civil causes from the city court of Bessemer to other courts of Jefferson county was unconstitutional and void, and that therefore his judgment declining to order the removal of the cause from the city court of Bessemer to the circuit court of Jefferson was correct.

J. A. Estes and W. K. Smith, for appellant.

Walker, Tillman, Campbell & Morrow, Cabaniss & Weakley, and A. G. & E. D. Smith, for appellee.

McCLELLAN C.J.

The chief question involved in these cases is the constitutionality of an act of September 26, 1903, entitled thus: "An act authorizing the transfer of any civil cause pending in the city court of Bessemer, in the county of Jefferson, in the state of Alabama, to the circuit court of Jefferson county, in said state, or to the city court of Birmingham, in said state, or to any other court of competent jurisdiction, sitting in the city of Birmingham." Loc Acts 1903, p. 369. All the provisions of this act are within or cognate to this title, and proper and adequate to the carrying out of the purpose therein expressed. The main grounds of the attack made upon the organic integrity of the enactment are: First, that its purpose and operation are to provide for a change of venue in the cases to which it applies in a manner violative of section 75 of the Constitution, which is as follows: "The power to change the venue in civil and criminal causes is vested in the courts, to be exercised in such manner as...