McGehee v. State

• Decision Date: 21 December 1916
• Docket Number: 6 Div. 456
• Citation: 74 So. 374,199 Ala. 287
• Parties: McGEHEE v. STATE ex rel. TATE, Solicitor.
• Court: Alabama Supreme Court

74 So. 374

199 Ala. 287

McGEHEE v. STATE ex rel. TATE, Solicitor.

6 Div. 456

Supreme Court of Alabama

December 21, 1916

On Rehearing, February 15, 1917

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Proceeding by the State, on the relation of Joseph R. Tate, Solicitor against B.E. McGehee. Decree for relator, and defendant appeals. Affirmed.

W.M Woodall, of Birmingham, for appellant.

Beddow & Oberdorfer, of Birmingham, for appellee.

SAYRE J.

This is an appeal from the judgment of the circuit court of Jefferson on an information charging that appellant usurped, intruded into, and unlawfully held and exercised the office of notary public and ex officio justice of the peace in and for precinct 9 in Jefferson county. Appellant claimed in the court below, and renews his contention here, that the act establishing an inferior court for certain precincts in Jefferson county, lying within or partly within the city of Birmingham, in lieu of all justices of the peace and all notaries public exercising the powers of justices of the peace in such precincts, approved July 12, 1915 (Local Acts p. 231 et seq.), was unconstitutional and void on numerously assigned grounds to be here noted and considered as far as need be.

Passing over some mere general assertions in the brief of counsel for appellant, we find this first among the propositions to be considered: That the notice of intention to apply for the passage of the local act in question failed of compliance with section 106 of the Constitution in various respects, to wit: It failed to give notice that the act proposed would abolish the office held at the time by appellant, viz. the office of notary public exercising the powers and jurisdiction of a justice of the peace in and for precinct 9, a precinct lying partly within the incorporated city of Birmingham; it failed to give notice that the act proposed would abolish the office of constable for said precinct 9; said notice failed to show that the court to be created by the act would have jurisdiction of all civil cases where the amount in controversy did not exceed $100, except in cases of libel, slander, assault and battery, and ejectment, whereas the act does purport to confer such jurisdiction, including, as appellant construes it, jurisdiction of equity causes not involving amounts in excess of $100; the notice was no notice, since it showed a purpose to apply for the passage of an act that would be unconstitutional for the reason that it would contravene subdivision 21 of section 104 of the Constitution, providing that the Legislature shall not pass any local law "increasing the jurisdiction and fees of justices of the peace or the fees of constables."

The court is of opinion that none of the foregoing objections to the act afford sufficient reason for declaring it unconstitutional.

On the general subject indicated by the first three objections noted above, section 106 of the Constitution, we have said that:

"The Constitution does not proceed upon the theory that all the details of every proposed law will be worked out in advance and without the aid of legislative wisdom. It requires only that the local public shall be advised of the substance of the proposed law, of its characteristic and essential provisions, of its most important features." Christian v. State, 171 Ala. 52, 54 So. 1001.

A narrow and literal construction would destroy all power of amendment in the legislative process, so that the Legislature would be required to accept, if at all, every local bill in the exact terms of its proposal. Not being inclined to hamper legislation unnecessarily, this court has held that the Constitution was not intended to interfere with the right of the Legislature to shape up and work out the details of local legislation. Ensley v. Cohn, 149 Ala. 316, 42 So. 827; State v. Williams, 143 Ala. 501, 39 So. 276; State ex rel. Hanna v. Tunstall, 145 Ala. 477, 40 So. 135.

The notice of this act was amply broad, and at the same time sufficiently definite, to reach and cover the case of notaries exercising the powers and jurisdiction of justices of the peace. Its language was that an act was to be passed providing for an inferior court "in lieu of justices of the peace in said precincts and in lieu of all other courts created in lieu of justices of the peace in said precincts." The policy and purpose of the Constitution is to permit the Legislature to supersede justices of the peace in the exercise of a petty jurisdiction and to consolidate such jurisdiction in populous communities where they have sometimes shown a tendency to degenerate into a cause of public inconvenience and detriment. The language of the Constitution, with a knowledge of which all men are charged, is:

"Where one or more precincts lie within, or partly within, a city or incorporated town having more than fifteen hundred inhabitants, the Legislature may provide by law for the election of not more than two justices of the peace and one constable, for each of such precincts, or an inferior court for such precinct or precincts, in lieu of all justices of the peace therein." Section 168.

No one, reading the notice in this case, bearing in mind the true intent and meaning of the constitutional authority, and remembering that the two classes of officers have and exercise the same jurisdiction and the same powers, could have any reason for supposing that the Legislature, while dispensing with justices of the peace strictly so called, would retain justices of the peace ex officio. Hence our conclusion, in keeping with the canon of construction heretofore applied to the constitutional requirement of notice, is that the objections taken to the notice in this case, and noted above, cannot be sustained.

Responding to the objection that no notice was given that the office of constable for precinct 9 would be abolished, it will suffice to say that the act does not purport to abolish that office. If a constable, claiming to hold his office by virtue of the Constitution and the general laws of the state, is anything more than the executive officer of the court over which the justice of the peace in his precinct presides, and so for some purposes may be held to survive an act which, while abolishing the justice, says nothing of the constable, then the office of constable for precinct 9 in Jefferson county has for such purposes survived the act in question. Further on this point we need not go.

The act clothes the inferior court which it sets up with "all the powers and jurisdiction now conferred or that may hereafter be conferred, both civil and criminal, upon justices of the peace," and specifically provides that:

"Said court shall have jurisdiction in civil cases where the amount involved does not exceed one hundred dollars, except in cases of libel, slander, assault and battery, and ejectment."

Nothing is said concerning equity jurisdiction. Whatever equity powers justices of the peace have, the inferior court has, no more, no less. As for this objection, the court is therefore in the strictest sense a court for the precincts within its jurisdiction "in lieu of all justices of the peace therein," as the Constitution provides, and in this respect the act follows the notice comprehensively and accurately.

The constitutional inhibition against "increasing the jurisdiction and fees of justices of the peace" (subdivision 21, § 104) has no application to the "inferior courts" in lieu of justices of the peace authorized by section 168 of that instrument. We held in the recent case of State v. Roden, 73 So. 657, that where an inferior court is set up in lieu of justices of the peace--that is, justices are abolished and their powers and jurisdiction are conferred upon an inferior court--the jurisdiction of the inferior court in respect of subject-matter, like that of the justices of the peace whom it supersedes, may not be extended to cases of libel, slander, assault and battery, or ejectment, nor to any civil case where the amount in controversy exceeds one hundred dollars; but it was not decided that in every or any other respect the inferior court must be fashioned in the exact pattern of a justice's court. If it was so intended, no purpose would be served by the alternative of the Constitution which, to state its effect as we understand it, authorizes the consolidation of all the official functions of all the justices of the peace of a number of precincts in an inferior court the civil jurisdiction of which, as to subject-matter, shall not exceed the maximum of that jurisdiction which may be conferred upon justices of the peace. It is not to be supposed that the framers of the Constitution intended to speak of justices of the peace and the inferior court as one and the same thing, but rather that they provided for their creation as judicial institutions that might be made to differ except in respect of jurisdiction as to the subject-matter of civil causes. Conforming in this respect to the preliminary publication, the act in question creates an inferior court the judges of which are put upon a salary and its civil jurisdiction confined within constitutional limits. We find, therefore, no reason for declaring that the publication here shown by the journals of the House and Senate (H.J. vol. 1, p. 479; S.J. vol. 1, p. 1079) brought the act in question within the influence of the decision in Alford v. Hicks, 142 Ala. 355, 38 So. 752, as giving notice of an intention to apply for the passage of an act that would offend against the Constitution in the respect here under consideration.

It is urged in the next place that section 64 of the Constitution providing that "no amendment to bills shall be adopted except by a majority of the House wherein the...