Ex parte Johnson

• Decision Date: 04 December 1919
• Docket Number: 5 Div. 739
• Citation: 84 So. 803,203 Ala. 579
• Parties: Ex parte JOHNSON.
• Court: Alabama Supreme Court

84 So. 803

203 Ala. 579

Ex parte JOHNSON.

5 Div. 739

Supreme Court of Alabama

December 4, 1919

Response to Application for Rehearing Jan. 1, 1920

Response to Application for Rehearing.

Petition by Sallie Johnson for writ of prohibition against Hon. Lum Duke, individually and as Judge of the Lee Circuit Court Writ denied.

Petition by Sallie Johnson for a writ of prohibition to be directed to Hon. Lum Duke, individually and as judge of the Lee circuit to restrain him from holding said court in accordance with the order set out in the petition, and from hearing and determining that certain cause of the State v. Johnson pending in the circuit court of Lee county. The petition sets up that in July, 1919, the grand jury of Lee circuit court returned an indictment against Sallie Johnson for a misdemeanor, which indictment is now pending in said court.

The petition shows that in 1916 Hon. Lum Duke was duly elected judge of the Lee circuit court, which at the time was one of the judicial circuits of the state, composed of Lee county and that he was duly commissioned and qualified as such judge prior to September 30, 1919.

It is further shown that, by an act of the Legislature approved September 30, 1919 (Acts 1919, p. 858), Lee circuit, composed of Lee county, was abolished, and Lee county placed in the Fifth judicial circuit and made a part thereof; that the Fifth judicial circuit, as constituted under said act, is composed of five counties, including Lee; and that the judge of said circuit, as the same existed before September 30 1919, is by said act made presiding judge of the Fifth judicial circuit, Lee county no longer constituting a circuit of one county, and that the judge of the Lee circuit no longer has jurisdiction, as judge of said Lee circuit, to hear and determine misdemeanor cases in which the defendants are in custody in Lee county. It is further averred that Hon. Lum Duke, as judge of the Lee circuit court, on October 30, 1919, issued an order, convening said court for the trial of nonjury criminal cases; that said court convenes November 17, 1919; and that said order has been made by him without authority or instructions from the presiding judge of the Fifth judicial circuit or from the Chief Justice of the Supreme Court; that petitioner's case is a nonjury criminal case, and has been set down for hearing on said date; and, further, that petitioner has protested to said judge against said cause being set down for trial, but that Hon. Lum Duke claims to have authority to issue said order and to hold said court and try the cause, and, unless restrained from doing so, will proceed and try the same; that Hon. Lum Duke claims the act of September 30, 1919, is unconstitutional and void, and that Lee circuit still exists, and as judge of said Lee circuit he has jurisdiction.

The answer sets up the unconstitutionality of the above-cited act in justification of the order, and many grounds of objection are enumerated therein.

Dickinson & Dickinson, of Opelika, for appellant.

Steiner, Crum & Weil, of Montgomery, Hugh M. Caffey, Jr., of Brewton, C.W. Hare, of Tuskegee, Lackey & Glass, of Ashland, Leeper, Haynes & Wallace, of Columbiana, and E.S. Thigpen, of Brewton, amicus curiae.

N.D. Denson & Sons, Barnes & Walker, T.D. Samford, Smith & Watkins, George P. Harrison, E.H. Glenn, Jr., and E.A. Burke, all of Opelika, for appellee.

GARDNER J.

By this proceeding the parties to this litigation seek to test the constitutionality of an act of the Legislature approved September 30, 1919, known as the "Recircuiting Act."

Due to the fact that the question is one of such great importance to the public and of state-wide interest, we pass for the present the question as to whether or not a proper case is shown for the issuance of the writ of prohibition, and enter at once into a consideration of the several attacks made upon the validity of this act, reserving for the close our conclusion as to the remedy.

Counsel for appellant rest their contention for the striking down of this act largely upon two principal points, either of which, it is insisted, would be fatal to its validity. We will consider them in the order of their presentation in brief.

It is first contended that what is known as the Lee circuit has been abolished by this act, and the judge thereof deposed prior to the expiration of his term of office, contrary to section 155 of the Constitution of 1901. This section of the Constitution provides, among other things, that the term of circuit judges shall be six years, and that the right of such judge to hold office for the whole term shall not be affected by any change made by law in any circuit, or in the mode or time of election. Sections 173 and 174 of the Constitution provide the manner by which circuit judges may be removed from office. The circuit court is a constitutional court, and the office of judge thereof is a constitutional one (sections 179, 142-144; State ex rel. Winter v. Sayre, 118 Ala. 1, 24 So. 89), and we are of the opinion that under the foregoing constitutional provisions the circuit judge of Lee county, whose term of office had not yet expired, could not be legislated out of office by any provision of a recircuiting bill. The question therefore arises as to whether or not this has been done or attempted.

In Smith v. Stiles, 195 Ala. 107, 70 So. 905, it was shown that the county of Lee was detached from the Third judicial circuit in 1907, and a law and equity court, with the jurisdiction of the circuit and chancery court, established. It was there held that the act of August 16, 1915 (Laws 1915, p. 279), known as the "Consolidated Court Law," providing a circuit court in each county in the state, merely converted the Lee law and equity court into a circuit court; and, as the county had been detached, there was created a distinct subdivision of the state for court purposes. The act of detachment automatically and by necessary implication made it a circuit to all intents and purposes. The effect of the act as to Lee county was merely to change the name from the Lee law and equity court to the Lee circuit court, the court saying:

"They did not have to be numbered or even named, if otherwise *** designated, and the act plainly provides for a circuit court in Lee and Marengo counties, which had already been *** set apart to themselves, and if it is necessary to name them, as a mere matter of form, they can be known as the Lee county circuit and the Marengo county circuit, as that is what they are to all intents and purposes."

It is therefore seen no great importance was attached to the mere name of the circuit, designated for convenience in the opinion as the Lee county circuit.

It can hardly be seriously questioned that the Legislature had authority to change the Lee county circuit and merge it with the Fifth judicial circuit. Section 155, Const. 1901; Ex parte Roundtree, 51 Ala. 42; State v. Black, 74 So. 387. Indeed, the provision of section 155 of the Constitution that the right of the judge to his full term shall not be affected by any change made in any circuit necessarily implies that changes in the circuits were authorized and were to be anticipated; the inhibition being against a disturbance of the term of the judge before its expiration. This merger is accomplished by section 2 of the act, which reads as follows:

"That the Lee circuit composed of Lee county be, and the same is hereby abolished as a separate and distinct circuit, and the same is hereby merged and consolidated with the Fifth judicial circuit and is made a part thereof."

It is argued that, in order to make this valid, the act should have postponed the time for its effectiveness until the expiration of the term of the judge of said Lee circuit, the purpose of the postponement being the preservation of the judicial term, as the provision of our Constitution, and the authorities hereinafter cited show that the paramount consideration in such questions is the independence of the judiciary.

The remaining question therefore is, Does the act abolish the office of the respondent? Sections 3 and 4 are as follows:

"Sec. 3. That the present judge of the Fifth judicial circuit as now constituted shall be the presiding judge of the Fifth circuit as provided for under the provisions of this act.

"Sec. 4. That upon the passage and approval of this act thereafter and up to the general election in 1922, the solicitor of the Fifth circuit, before consolidation, shall prosecute in criminal cases in the counties of Chambers, Macon, Randolph, and Tallapoosa, and the solicitor of the Lee circuit, before consolidation, shall prosecute in criminal cases in the counties of Lee, and in such other counties and territories as he may be directed by the Attorney General. That at the general election of 1922, there shall be elected only one judge and one solicitor for the Fifth judicial circuit, as defined by this act."

The words "presiding judge," used in section 3 of this act, have, when taken in connection with the language of section 4, a well-understood meaning in this state. By legislative enactment, in those counties having more than one circuit judge, provision is made for a presiding judge, and the others are known as associate judges. We speak of situations presented in cities like Birmingham, Mobile, and Montgomery. The words "presiding judge" as used in section 3 of the act would have no sensible meaning unless intended in the connection just stated. But any doubt that might exist in reference to that question is, we think eliminated by the concluding sentence of section 4, to the effect that in the general election of 1922 there shall be elected only one judge and one solicitor for the Fifth judicial circuit, as defined...