State ex rel. Montgomery v. Merrill

• Decision Date: 14 June 1928
• Docket Number: 7 Div. 815
• Citation: 117 So. 473,218 Ala. 149
• Parties: STATE ex rel. MONTGOMERY v. MERRILL.
• Court: Alabama Supreme Court

117 So. 473

218 Ala. 149

STATE ex rel. MONTGOMERY v. MERRILL.

7 Div. 815

Supreme Court of Alabama

June 14, 1928

Rehearing Denied June 30, 1928

Appeal from Circuit Court, Talladega County; R.B. Carr, Judge.

Quo warranto by the State of Alabama, on the relation of Earle Montgomery, against Walter B. Merrill, as Judge of the Seventh Judicial Circuit. Relator takes a nonsuit and appeals from adverse rulings on pleading, overruling demurrer to answer. Affirmed.

Rutherford Lapsley and J.J. Willett, Jr., both of Anniston, for appellant.

Knox Acker, Sterne & Liles and Merrill & Field, all of Anniston for appellee.

GARDNER J.

The purpose of this quo warranto proceeding is to test the constitutionality of the act approved September 6, 1927 entitled "An act to authorize and create an additional judge of the Seventh judicial circuit of Alabama and to provide for his election, jurisdiction, powers, authority and qualifications, to render him liable to all the pains and penalties of the other circuit judges of the state, and to provide for the salary of said judge." Gen.Acts 1927, p. 633. No notice of an intention to apply for the passage of this act was ever published, as required by section 106 of the Constitution of 1901 for the enactment of local legislation, and the pivotal question, therefore, here for determination, is whether the act is a general or a local law. If the latter, it must fall.

Counsel for relator lay much stress in support of their insistence that this is a local law upon Wallace v. Board of Revenue of Jefferson County, 140 Ala. 491, 37 So. 321, and State ex rel. Atty.Gen. v. Sayre, 142 Ala. 641, 39 So. 240, 4 Ann.Cas. 656, wherein it was held that the establishment of a judicial circuit of certain defined and limited territorial area was local legislation and within the influence of section 106 of our Constitution.

In the Wallace Case, supra, the court, in discussing the question, used the following expression:

"The act is public, it is true, but local in effect, and not general in its application to the people of the whole state. No one outside of the county who does not bring himself within its influence is affected by it."

But the logic of the holding of these authorities does not lead to a like result as to an act creating the office of additional circuit judge. It cannot be said concerning such judicial office that no one outside the circuit is brought within the influence of his power and authority, for a circuit judge is a state official, constituting a very important part of the judicial machinery of the state, with jurisdiction coextensive with the state.

"The jurisdiction of the circuit judges is coextensive with the state. They have the same official authority and power in one county as in another." Ex parte Nelson & Kelly, 62 Ala. 376; Brue v. McMillan, 175 Ala. 416, 57 So. 486; Board of Education v. Watts, 19 Ala.App. 7, 95 So. 498; Ex parte Watts, 209 Ala. 115, 95 So. 502.

Every person and all property within the confines of the state come, therefore, within the influence of his authority.

A brief consideration of the history of the office supports the conclusion here reached, and is a refutation of the theory that this highly important judicial position has become localized by virtue of a division of the state into convenient circuits, with judges designated to primarily preside therein. "The English common law, in so far as it is applicable in this country, and where it has not been abrogated or changed by constitutional or statutory enactments, is in force in the several American states. *** The American colonists brought this law with them from the home of their race, and adopted it and lived under its precepts as naturally and inevitably as they continued to use their mother tongue. *** It has always been the understanding that that law was accepted and put in force by the founders of the American states, and continued in force by these provisions, only in so far as it was applicable to the conditions and circumstances of this country." Black on Interpretation of Laws, § 94, pp. 231, 232.

Like the common law, the fundamental principles of our judicial system were derived from England and here adopted to our needs and conditions in harmony with our form of government.

"Our system of courts and the principles governing them are derived from the common law. But in England the tribunal was called the 'curia' or 'court,' because it was held by the king himself originally. The judgments of the courts read as the judgments of the king, and when he ceased to hold the court in person, and delegated this function to one of his officers, the character of the judgment was the same. *** In this country the power vested in the king vests in the body of the people, and the courts sit as their representative." Bridges v. McAlister, 106 Ky. 791, 51 S.W. 603, 45 L.R.A. 800, 90 Am.St.Rep. 267.

See, also, Andrews, American Law, vol. 2, p. 1208.

Very clearly, in England, the itinerant judges, assigned to hold court in various portions of the realm, and who correspond to our present circuit judges in this state, were in no manner considered as localized.

"The courts of assize and nisi prius *** composed of two or more commissioners *** sent by the king's special commissioner all round the kingdom *** to try by a jury of the respective counties the truth of such matters of fact as are then under dispute in the courts of Westminster Hall. *** These judges of assize *** afterwards made their circuit round the kingdom once in seven years for the purpose of trying causes. *** They were afterwards directed by Magna Charter to be sent into every county once a year." Cooley's Blackstone, vol. 2, pp. 56, 57.

"The Chief Justices, the treasurer, two or three bishops, will usually be sitting while others come and go; some of them may be away upon circuits." Pollock & Maitland History of English Law, vol. 1, p. 133.

"The visitation of the counties by itinerant justices has been becoming systematic." Id. p. 134.

"These itinerant justices seem to have been chiefly employed in hearing the pleas of the crown *** and in entertaining some or all of the new possessory actions." Id. p. 135.

"Just at this time the practice seems to have been to divide England into four circuits, and to send two justices of assize around each circuit." Id. p. 180.

This brief review will suffice to demonstrate that judges of the nisi prius courts of England had jurisdiction and exercised this power over the entire kingdom, and that the establishment of circuits had no tendency to localize the position of the judge.

It is of interest in this connection to note that in the act establishing the Alabama territory it was provided that "No judge shall sit more than twice in succession in the same court" (Code 1923, p. 29), though this provision was repealed the following year. Code 1923, p. 32. The first General Assembly of Alabama, however, re-enacted this provision in the following language:

"When the circuit judges shall have been elected *** they shall *** hold the circuit courts at the times and places designated and established by law; and shall reside within the circuit to which they may be severally elected; and in case of the removal of any such judge out of the circuit to which he is elected, his office shall be vacated thereby: Provided, that nothing, in this act contained, shall be so construed as to prevent the interchange of ridings by such judges in their several circuits in the manner hereinafter pointed out, that is to say; the judges holding the courts aforesaid, shall so alternate, that no one judge shall hold the courts of the same circuit for two courts in succession." (Italics supplied.) Clay's Digest, p. 295, § 35.

The framers of the Constitution of Alabama of 1819 evidently did not regard the office as a local one, for they made no requirement of eligibility for the position of circuit judge that he should before appointment be a resident of the circuit over which he was designated primarily to preside, but only the provision that he shall, "after his appointment, reside in the circuit for which he may be appointed." Const.1819, vol. 1; Code 1923, p. 72. A resident of any section of the state was eligible to be chosen as judge of any circuit in the state, and such situation continued the law of this state until changed by the Constitution of 1875 (section 4, art. 6, Const.1875; section 142, art. 6, Const.1901), providing a residence in the circuit of one year next preceding his election.

The state-wide conception of the office of the circuit judge is further illustrated by the provision of our state Constitution of 1819 (section 3, art. 5), to the effect that the Supreme Court should consist of the several circuit judges, using the following language:

"Until the General Assembly shall otherwise prescribe, the powers of the Supreme Court shall be vested in, and

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