Ex parte Black
| Decision Date | 30 June 1905 |
| Citation | 144 Ala. 1,40 So. 133 |
| Parties | EX PARTE BLACK. |
| Court | Alabama Supreme Court |
Rehearing Denied Jan. 30, 1906.
"To be officially reported."
James Black was convicted of assault and battery, and he applied for a writ of error. Writ quashed, and judgment affirmed.
The appellant, James Black, was convicted in the county court of Geneva county, a court of record, of assault and battery, and fined. The prosecution was begun by affidavit made before Purvis, clerk of the circuit court, and warrant issued by the clerk for his arrest. After conviction he applied to this court for a writ of error, setting up the facts above stated and averring that there is error of law appearing upon the transcript of the record, in that the act creating the court was unconstitutional and void, and the judgment of conviction consequently void, and framed for an order directing the clerk to send up to the Supreme Court a certified copy of the proceedings, that upon a review of said proceedings this court render a judgment annulling the proceedings in the lower court and discharging petitioner.
W. O Mulkey, for plaintiff in error.
Massey Wilson, Atty. Gen., Espy & Farmer, and Steiner, Crum & Weil for the State.
The notice of an intention to introduce into the Legislature a bill to create and establish the inferior court for Geneva county, approved February 27, 1903, reads as follows: "To whom it may concern: You will take notice that at the present session of the Legislature of Alabama, a bill to create and establish an inferior court of record for Geneva county, prescribing the powers and jurisdiction of said court, and to provide for the election of officers thereof, will be introduced and an effort made to have the same enacted into law." The notice purports to have been signed by five persons. The proof of notice was as follows:
The constitutionality of the act establishing said court is questioned on two grounds: That the notice given of the intention to apply for the passage of the law was insufficient, in that it did no more than state the subject of the purposed law and did not state the substance; and that the proof of notice was insufficient. The court to be established is referred to in said notice as an "inferior court of record for Geneva county," the bill for which should prescribe the powers and jurisdiction of said court, and to provide for the election of the officers thereof. These are the only words in the notice that refer to the subject or the substance of the act. That the act is a local law is not disputed. Section 110 of the Constitution. The act covers little less than 12 pages of the printed acts of the Legislature, contains 21 sections, and is found at page 40 of the local acts of 1903. On reading the notice that was published would not be apprised of any thing more than that the court would be created, that its powers and jurisdiction would be prescribed, and that provision would be made for officers of the court. Section 4 of the act prescribes the rules of practice and procedure in said court. Section 5 prescribes how prosecution shall be commenced in said court. The sixth section provides for jury terms of the court and prescribes the qualifications of jurors. Besides, this section prescribes the rules of procedure that shall govern in jury trials. The seventh section prescribes the duties of the jury commission with reference to drawing jurors for the jury terms of the court. Section 8 provides the manner of obtaining a jury trial. Section 9 provides for appeals to the Supreme Court in civil and criminal cases and from judgments or decrees of said court granting writs of mandamus, habeas corpus, and all other remedial writs. It also prescribes a rule for the government of the Supreme Court in reviewing judgments of said court on appeal. Sections 11 and 11 1/2 provide that the clerk of the circuit court shall be ex officio clerk of said court, and prescribes the fees he shall receive. Section 12 provides for the execution of warrants and process of every kind issuing from said court by the sheriff or his deputies, or by any constable of the county when deputized in writing, and fixes the fees for such service. It also provides that deputized constables shall be liable on their official bonds to any party aggrieved on account of their improper execution of process. Section 13 provides for payment of costs and fees incurred at the instance of the state out of the fine and forfeiture fund of the county. Section 16 confers on the judge of said court, concurrently with the probate judge of said county, jurisdiction in proceedings for habeas corpus. Section 17, among other things, provides that the judge of the court shall exercise all the powers and jurisdiction which is now and may hereafter be lawfully exercised by the judge of the circuit court, including the authority to issue writs of injunction returnable to the chancery court of said county, mandamus, certiorari, prohibition, ne exeat, and all other remedial writs. Section 18 provides for a solicitor for said court, and provides for his compensation. Section 19 provides that the salary of the judge shall be $1,000, to be paid out of the county treasury on warrant drawn by the clerk.
In construing section 106 of the Constitution, which provides that the notice of the intention to apply for the passage of a local law by the Legislature shall be published, which notice shall state the substance of the proposed law, and be published at least once a week for four consecutive weeks in some newspaper, etc., care should be observed that the word "substance" be not used or interpreted as a synonym of the word "subject." The two words are essentially different in meaning and convey entirely different ideas. Section 45 of the Constitution provides that each law shall contain but one subject, which shall be clearly expressed in its title, etc. This section was in the Constitution of 1875, has been many times construed by this court, and in construing that section the difference in the meaning of the two words "subject" and "substance" has been pointed out. Falconer v Robinson, 46 Ala. 347; Ex parte Thomas, 113 Ala. 1, 21 So. 369; Ex parte Pollard, 40 Ala. 98; Wallace v. Board of Revenue, 140 Ala. 502, 37...
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State ex rel. Wilkinson v. Allen
...authorities, was held to have misapplied the law and it was not followed. First Nat. Bank v. Smith, supra. The opinion in Ex parte Black, 144 Ala. 1, 40 So. 133, merely held that in a notice to create an inferior court reference need not be made expressly to the jurisdiction thereof, nor th......
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State v. Gunter
...So. 909, 32 L. R. A. 520; City Council v. N. B. & L. A., 108 Ala. 336, 18 So. 816; Blue v. Everett, 145 Ala. 104, 40 So. 203; Ex parte Black, 144 Ala. 1, 40 So. 133; Dudley v. Fitzpatrick, 143 Ala. 162, 39 So. Holman v. State, 144 Ala. 95, 39 So. 646. The fixing of the term of office of the......
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Robinson v. State
... ... stated the substance of the proposed law within the meaning ... of the constitutional requirement above mentioned. Ex parte ... O'Neal, 154 Ala. 237, 45 So. 712; Ex parte Black, 144 ... Ala. 1, 40 So. 133; Wallace v. Board of Revenue, 140 ... Ala. 491, 37 So. 321 ... ...
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Opinion of the Justices, 294
...ready application here. There can be no distinction in principle in the two cases on the question under consideration. See, also, Ex parte Black, 144 Ala. 1, 40 South. 133. The published notice having given the substance of the proposed law-the altering or rearranging of the boundaries of t......