State v. Carter

• Decision Date: 29 June 1911
• Citation: 174 Ala. 266,56 So. 974
• Parties: STATE EX REL. CLARKE v. CARTER.
• Court: Alabama Supreme Court

56 So. 974

174 Ala. 266

STATE EX REL. CLARKE v. CARTER.

Supreme Court of Alabama

June 29, 1911

On Application for Rehearing, December 21, 1911.

On Rehearing.

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Quo warranto by the State, on the relation of N. R. Clarke against John E. Carter. From a judgment of dismissal, relator appeals. Reversed and rendered.

Stevens & Lyons, for appellant.

Inge &amp McCorvey, for appellee.

MAYFIELD J.

This is a quo warranto proceeding, instituted in the name of the state on the relation of N. R. Clarke, against John E Carter, seeking that he be required to show by what authority, if any, he is claiming the right to exercise the functions and authority of justice of the peace in and for precinct No. 7 of Mobile county, and that he be restrained from further exercising said functions and powers. The respondent demurred to the petition or complaint, and assigned numerous grounds therefor. The trial court sustained the respondent's demurrer and dismissed the proceeding, and from that judgment the relator prosecutes this appeal.

The petition, among other things, alleged that the office of justice of the peace, the functions and powers of which respondent was attempting to exercise, had been abolished by a local act of the Legislature, entitled, "An act to establish an inferior civil court in lieu of justices of the peace, for all precincts lying within or partly within the city of Mobile." Local Acts 1911, p. 274. It is conceded by respondent, appellee here, that, if this act was passed in conformity with the provisions of the state and federal Constitutions, the respondent has no right to exercise the functions and powers which he is alleged to be now exercising, and that he should be ousted from the office or prohibited from exercising such authority; but it is contended, on the other hand, that if such act was not constitutionally enacted, or would not have the effect to abolish the office of justice of the peace, then the respondent has the right to continue in said office, and the trial court sustained his demurrer to the petition or complaint.

Upon this state of the record, it is necessary on this appeal only to determine whether or not this local statute in question was constitutionally enacted, and whether or not it had the effect to abolish the office which the respondent claims to hold, and the duties and powers of which he claims to be entitled to perform and to exercise.

It is insisted by the respondent that this act is unconstitutional, void, and of no effect for several reasons. The first point of contention is that the act, being a local one, was not passed in conformity with the provisions of section 106 of the Constitution, in that the journals of the House and the Senate do not affirmatively show that the notice provided in said section was published "without cost to the state."

It is conceded that there was an attempt to comply with this provision of the Constitution, and that the notice was given and published, but it is claimed that the journals do not show affirmatively that it was so published "without cost to the state," and that such journals do not show that it was published for the length of time required by the Constitution. It is not necessary that the journals should show affirmatively that it was published without expense to the state. The Constitution directs only that the journal must affirmatively show that the bill was passed in accordance with the provisions of this section.

Moreover, the court judicially knows that there was no law whereby the state could have been required to incur the expense of paying for this notice; and the journal therefore does affirmatively show that the notice was given and the publication had without any expense to the state. The only possible effect of this provision, "without cost to the state," is to prevent the Legislature from authorizing or attempting to authorize the state to incur the expense of such publications.

As to the length of time during which the notice was published, the affidavit of publication recites that it was "published in a newspaper once a week for four consecutive weeks, ending March 20, 1911." This certainly conformed to the constitutional requirement as to the length of time. The only reasonable construction which could be given this language is that the period of four consecutive weeks during which publication was had ended March 20, 1911, and the bill was introduced in the Legislature two days thereafter. This construction is fully supported and sustained by the opinion in the case of Ensley v. Simpson, 166 Ala. 381, 52 So. 61.

It is next insisted that the act violates section 168 of the Constitution, in that it creates two inferior courts in lieu of the justices' courts of the city of Mobile, whereas the Constitution authorizes the creation of only one. There is certainly no merit in this contention. In the first place, this act does not create, nor attempt to create, two courts; nor does the fact that other courts have been created for Mobile county and invested with the jurisdiction of justices' courts render this act void.

Moreover, there is no reason why the Legislature could not establish two courts of inferior jurisdiction in lieu of the justice courts, if it could establish one. One court might be inadequate to properly and promptly administer the law, and, if two should be required, we see no constitutional objection to the Legislature's creating two. It was evidently the purpose of the constitutional convention to leave it to the discretion of the Legislature as to whether it would establish inferior courts in lieu of justice courts.

It is unnecessary for us to pass upon the question, whether that part of the act authorizing the judge of the inferior criminal court of Mobile to act as ex officio judge of the inferior civil court and giving him compensation for his services violates the constitutional provision against one person's holding two offices of profit and trust, or that which provides that the compensation and fees of officers shall not be increased during the term for which they were elected for the reason that, if such provisions were invalid, the infirmity would not strike down the whole act, nor prevent the abolition of the office of justice of the peace for Mobile county, if the act in question was constitutionally enacted, and did create an inferior court, though the provisions as to the appointment or election of the judge thereof might be inoperative and inefficacious.

In other words, this part of the act, standing alone, would neither add to nor subtract from the power of exercising the functions of his alleged office. Because one section or one provision of an act may be unconstitutional and void does not necessarily render the entire statute or enactment void. If the act can be given operation and effect without such void provision, the valid portions of it will be allowed to stand, unless the court is unable to say or to know that the Legislature would have passed the act without the void provision; but the court is relieved of any doubt as to this matter by section 18 of the act in question, which expressly provides that, if any provision of the act shall be held void, it shall not affect any other section or provision of the act. Harper v. State, 109 Ala. 32, 19 So. 857; State v. Davis, 130 Ala. 150, 30 So. 344, 89 Am. St. Rep. 23; Shehane v. Bailey, 110 Ala. 308, 20 So. 359.

This is likewise true as to other objections urged against the constitutionality of the act, upon the ground that the title was not sufficiently broad to authorize certain provisions contained in the body of it. If such provision should fail, it would not strike down nor render inoperative the entire statute, nor prevent the abolition of the office of justice of the peace. These objections go only to parts of the statute which can neither add to nor subtract from the rights, duties, and functions of the respondent. If, however, we could consider these questions, we are not prepared to say that it is sufficiently made to appear by this record that the enacting parts of this bill as to the extent of the territorial jurisdiction are not embraced in the title of the act, and such parts are certainly germane and cognate to the title.

There is one singular provision in the act contained in section 13 which expressly authorizes the defendant to appeal from the judgments in such court--the statute containing no like express provision with respect to the plaintiff. It is unnecessary, however, on this appeal, for the court to further discuss this question, for the reason that section 3 of the act provides that the general laws of this state regulating the practice and proceedings of courts of justices of the peace shall be applicable to the said inferior criminal courts. These terms, we think, are sufficiently broad to include the right of appeal from judgments of this court under the same provisions and conditions as for appeals from justices' courts.

Indulging the presumption in favor of the constitutionality of the statute, which we are required to do, we are not willing to condemn the entire statute because of this irregularity or defect, but, on the other hand, will give it that construction which will uphold its constitutionality; that is, that section 3 of the act preserves the right to appeal from the judgments of such court.

The act contains a number of other irregularities, and shows upon its face that it was not drawn with the care and precision which should be given acts of this kind; yet we find no valid reason...