State v. Black

• Decision Date: 15 February 1917
• Docket Number: 508,509,6 Div. 506
• Citation: 199 Ala. 321,74 So. 387
• Parties: STATE ex rel. GASTON v. BLACK. In re TATE. STATE ex rel. TATE v. FORT, Judge.
• Court: Alabama Supreme Court

74 So. 387

199 Ala. 321

STATE ex rel. GASTON v. BLACK.

In re TATE.

STATE ex rel. TATE v. FORT, Judge.

6 Div. 506, 508, 509

Supreme Court of Alabama

February 15, 1917

Appeal from Circuit Court, Jefferson County.

Proceedings by the State of Alabama, on the relation of Zell Gaston against Hugo L. Black, and on the relation of Joseph R. Tate against William E. Fort, as Judge, etc., wherein Joseph R Tate, as Solicitor of the Tenth Judicial Circuit, makes a motion. Appeal affirmed, and applications for mandamus denied.

Sayre J., dissenting.

F.E. Blackburn, C.B. Powell, and Morris Loveman, all of Birmingham, for appellant Gaston.

Richard V. Evans and Joseph R. Tate, both of Birmingham, for appellant Tate.

Hugo L. Black, of Birmingham, pro se and for appellee Fort.

PER CURIAM.

These three cases together present for decision these questions:

(1) Can the Legislature of this state provide two prosecuting attorneys, one for the judicial circuit and one for the county, where the circuit and the county embrace the same territory--one a circuit solicitor, a constitutional officer and the other a county solicitor, a statutory officer but one expressly authorized by the Constitution?

(2) If so, can the Legislature make the county solicitor the chief prosecutor for the circuit and the county, in effect making the circuit solicitor an assistant to the county solicitor?

(3) If the Legislature can do both, has it in fact and in law done so as to the Tenth judicial circuit and Jefferson county, which embrace the same territory, and in which Joseph R. Tate is circuit solicitor and Hugo L. Black is county solicitor?

(4) Have both Black and Tate, as solicitors, the right and power to appoint deputies and assistants, the one, as is authorized in the act known as the General Solicitors' Bill (Acts 1915, p. 817), the other, under various local acts for Jefferson county, as was authorized by law at the date of the passage of the General Solicitors' Bill (September 25, 1915)?

All of the first three of the above questions were answered in the affirmative by the trial courts. It is contended by the circuit solicitor, Tate, that, his office being a constitutional office, the Legislature cannot destroy it, nor legislate him out of the duties and powers to be exercised by such officer; and that to provide that a county solicitor, a statutory officer, shall be the chief prosecuting officer in his circuit, is to indirectly destroy the constitutional office and substitute a statutory one therefor.

There is no doubt, of course, that the circuit solicitor, like the circuit judge, is a constitutional officer, and that the office cannot be destroyed, nor an incumbent legislated out of it, except as the Constitution itself may authorize; but to require that a part only of the duties which would otherwise be discharged by him shall be performed and discharged by another officer or solicitor, does not directly or indirectly destroy his office. Such was expressly held in Lusk's Case, 82 Ala. 519, 2 So. 140. In that case it was held to be perfectly competent for the Legislature to add to, or to take from, circuits, any number of counties within the constitutional limits (which were then different from present limitations), and thus abate the duties of the solicitor as to one or more counties, and transfer them to other solicitors; that the Legislature could, within its discretion, provide for county solicitors whenever and wherever desired; that the Constitution did not fix or attempt to fix the duties of either circuit or county solicitors; that the Legislature could fix the duties of both, and transfer the duties of the one to the other, as it might desire, and increase or diminish the duties of the one or the other, as it might deem best, except so far as the Constitution might by clear and undoubted implication prohibit, as there was no express prohibition against it. It was there expressly held that the duties of a county solicitor were not, by the Constitution, confined to other courts than the circuit courts, and that the Legislature could impose upon one such the duties of prosecuting officer in the circuit court of the county for which he was appointed, and take those duties as to one county only entirely away from the circuit solicitor. It was also decided in that case that the proviso in the Constitution authorizing the Legislature to provide county solicitors was to authorize such solicitors to prosecute in the circuit courts, for the reason that the county solicitor or county prosecuting officer had, before the proviso in the Constitution appeared, been authorized to prosecute in county and other inferior courts; so that its only effect was to authorize the county solicitor,when provided, to prosecute in the circuit court, as well as in the county court. The part of the opinion in the Lusk Case claimed by appellants to support their contention is as follows:

"The power given the General Assembly to establish the system of 'county solicitors,' in connection with that of 'circuit solicitors,' was intended to be exercised within the discretion of that body, subject, it may be, to the limitation of section 4 of article 6, that 'no circuit shall contain less than three, nor more than twelve counties.' Until the counties of the circuit, in which the circuit solicitor is expressly permitted to discharge his customary and characteristic duties, are reduced below the number of three, there would seem to be no grievance of which he can justly complain. The power to take one or more counties from his circuit may be admitted, without leading to the conclusion that this power may be abused by indirectly abolishing the entire circuit. The Constitution, as we have shown, forbids this in clear and unmistakable language. It follows, further, from the foregoing views, that the lawmaking power may define the duties of these two classes of solicitors, by increasing or diminishing them, or by transferring the duties of the one to the other in any judicial tribunal," etc. 82 Ala. 525, 526, 2 So. 140, 144.

The discretionary limitations upon the size of a circuit--the number of counties it might, and the number it should not, contain--were changed by the Constitution of 1901, and it is now allowable for counties of certain populations, and containing property of certain assessed valuations, to alone constitute a judicial circuit. Such a county is Jefferson, constituting the Tenth judicial circuit, of which Tate is the solicitor. As the county solicitor of Jefferson is attempted to be made the chief prosecuting officer in the circuit court of that county, it is claimed that the limitation fixed or made in the Lusk Case is exceeded, and that the attempt is therefore abortive.

If the Legislature had attempted to confer upon the county solicitor the exclusive right and duty to prosecute in the circuit court of Jefferson (the only county in the circuit), as the statute did in the Lusk Case as to De Kalb county, then we would agree to appellants' contention, that the attempt would fail, because it would then be clearly and undoubtedly within the implied inhibition of the Constitution.

The statutes under review in this case do not, as we construe them, attempt to do this, or what was done as to De Kalb county in the Lusk Case; it being provided and intended that both the circuit and the county solicitor shall prosecute in the circuit court of Jefferson county. Merely providing that one or the other of the two solicitors shall be the chief prosecutor in that court or in that county does not necessarily mean that the other shall not prosecute or have any duties to perform or powers to exercise in criminal or civil prosecutions in that court. There is no express provision prohibiting the circuit solicitor from performing any duties as to prosecutions in that circuit or county; and--as we construe this statute in connection with the general provisions in the local statutes as to Jefferson county and the Tenth judicial circuit, and in connection with the general provisions in the Code defining the duties of circuit, county, or other solicitors, together with the constitutional provisions applicable to circuit and county solicitors--both solicitors are charged with duties to be performed and clothed with the powers to be exercised, as to prosecutions in the circuit court of the county of Jefferson.

The fact that the act, or the proviso of the act, in question (section 10, Acts 1915, pp. 817, 823) provides that the county solicitor shall be the "chief prosecuting officer of the county," necessarily implies that there are other solicitors; and it does not deny to such other solicitors all right, or relieve them of all duty, to prosecute In the circuit or county of Jefferson. If the act said in terms that the circuit solicitor should assist the county solicitor in prosecutions in the circuit or in the county, it unquestionably would not have been unconstitutional or objectionable. Such was, and had been, the effect of the provisions of the local statutes for Jefferson county for a number of years prior to the passage of the statute in question. It is true that the local statutes did not require the circuit solicitor to assist the county solicitor in prosecutions in the circuit court for Jefferson county, but in the criminal and possibly other courts; but there were then few, if any, criminal cases prosecuted in the circuit court, or probably all of the duties of the circuit solicitor were taken from him and the circuit court and transferred to the criminal court. But the duty and right of the circuit solicitor to prosecute the same, and like cases in the criminal court, were imposed upon him by the local statutes and therein he was named as the assistant...