State v. Hubbard

• Citation: 148 Ala. 391,41 So. 903
• Parties: STATE EX REL. GAMBLE v. HUBBARD.
• Decision Date: 06 July 1906
• Court: Supreme Court of Alabama

41 So. 903

148 Ala. 391

STATE EX REL. GAMBLE v. HUBBARD.

Supreme Court of Alabama

July 6, 1906

Appeal from Circuit Court, Pike County; H. A. Pearce, Judge.

"To be officially reported."

Quo warranto by the state, on the relation of John Gamble against G. J. Hubbard. From an adverse judgment, defendant appeals. Reversed and rendered.

This was a petition, on relation of John Gamble, addressed to the judge of the Twelfth judicial circuit, asking for an order to G. J. Hubbard to show by what right or authority he was holding the office and exercising the rights and powers of recorder in the town of Troy. The case made by the petition is that under Acts 1869-70, p. 123, a charter was established by the city of Troy and among other powers granted therein the right to have and exercise the powers and jurisdiction of a justice of the peace within the corporate limits of the said city was conferred upon the mayor. By said act he was given exclusive original jurisdiction to hear and determine all suits, prosecutions, or other proceedings for a violation of the charter, ordinances, or by-laws of said city. On March 1, 1901, there was a local act passed by the Legislature of Alabama creating a court of criminal and quasi criminal jurisdiction, to be located at Troy, which court had and was given exclusive jurisdiction of all violations of the by-laws and ordinances of the city of Troy, together with concurrent jurisdiction with the state court to hear and determine certain misdemeanors committed within the police jurisdiction of said city. Said act also provided for a judge of said court to be elected in December, 1903, and each two years thereafter, by the qualified electors of said city, and, in case of a vacancy by removal, resignation, or death, said vacancy was to be filled by an election by the mayor and councilmen of the city of Troy. Such judge was known as the "recorder." On the 6th day of October, 1903, the Legislature passed an act undertaking to repeal the act of March 4, 1901, abolishing the recorder's court and the office of recorder, which act was to take effect in December 1905. Loc. Acts 1903, p. 512. At the general election held for city officers in December, 1905, there was no provision made whereby the electors of said city should vote for a recorder, and no votes were polled for a recorder, and none was elected. The two years having expired since the election of the recorder, and the said office being vacant by virtue of no election having been held for that office in the general election for city officers of Troy, the mayor and councilmen of Troy, assuming that the act of October 6, 1903 was void as in violation of the Constitution, proceeded to elect a recorder, and elected G. J. Hubbard, who is alleged to be now holding said office and exercising its powers and jurisdiction. Hubbard appeared and answered, admitting the facts above stated and alleging the unconstitutionality of the act of October, 1903, as violative of section 104, subd 18, of the Constitution of 1901. The court decreed said act unconstitutional, and held that Hubbard was rightfully exercising the powers and jurisdiction of the recorder of Troy under his election by the city council. From this decree this appeal is prosecuted.

Denson and Haralson, JJ., dissenting.

Foster, Samford & Carroll, for appellant.

G. J. Hubbard and W. E. Griffin, for appellee.

TYSON J.

Under the act "to establish a charter for the city of Troy in Pike county" (Acts 1869-70, p. 123), all the powers and jurisdiction of a justice of the peace in civil and criminal cases, within the corporate limits, were conferred on the mayor; and "exclusive original jurisdiction to hear, adjudge and determine all suits, prosecutions or other proceedings for the violation of the charter, by-laws or ordinances of the corporation." Jurisdiction was also conferred upon him of "all proceedings by motion, scire facias, or other suits on any penal bonds payable to the mayor, taken under the act or ordinances of said corporation, including proceedings and suits of the officers of the corporation and the sureties on their official bond, for the nonpayment of taxes or other moneys collected or received, or for other delinquencies or defaults in office." Acts 1869-70, p. 127, § 12. By the act establishing an inferior court of criminal and quasi criminal jurisdiction, to be known as the "recorder's court," and providing a judge therefor, approved March 4, 1901, exclusive jurisdiction is conferred upon that court "of all offenses against the by-laws and ordinances passed and ordained by the mayor and councilmen of Troy, within the territory embraced within the police jurisdiction of said city, and of all misdemeanors, concurrently with the criminal court of Pike county, committed within said territory embraced within said police jurisdiction, except violations of the revenue laws of the state, adultery, concealed weapons, assault and battery when a stick or other weapon is used and larceny and kindred offenses when the value of the property exceeds ten dollars"; also to examine all persons charged with felonies and to commit the same to jail, admit them to bail or discharge them as the law and evidence in the case may require. The other provisions of the act, comprising 16 sections, simply provide the machinery for carrying out and effectuating the exercise of the powers or jurisdiction conferred upon the court, not necessary to be here set out. Acts 1900-01, p. 2323.

It will be observed that no reference whatever is made in this act to the charter act. It does not assume in terms to revise, alter, or amend that act, or any section of it. The act itself is complete, and its meaning and scope plain and apparent. While its effect was to alter or change to a certain extent an existing power conferred on the mayor, that effect was produced by the later act, repealing pro tanto, by implication, the section of the charter act which conferred it, and not by anything on its face evincing that it was of an amendatory character. In other words, it is an independent act of legislation, and repeals by necessary implication because inconsistent with that provision of the charter act conferring jurisdiction on the mayor. To this extent, and only to this extent, did it change or alter that act. A repeal is one thing, and an amendment is quite another and different thing. A repeal of a statute involves necessarily a change in the law; and this is true, whether it be the only statutory enactment on the subject dealt with in the repealed act. Would any one contend that a statute in derogation of the common law was an amendment of it, simply because it altered or changed it? We think not. If not, it cannot be asserted with any show of logic that because an independent act, full and complete within itself, repeals by implication any portion of a statutory system, it is amendatory of the remaining statutes of that system, to which no reference is made. It is undoubtedly true that such an act alters or changes the system; but this change or alteration is and must be ascribed to the repeal wrought by the independent act, and not to the change or alteration consequent upon the repeal. So, also, an amendment involves some change or alteration in the existing statute law, and may also operate as a repeal of some of its provisions; but such change or alteration made by the amendment is direct and not consequential, as is the case of a repeal, and therefore the difference between the two is plain. There is also another marked difference. An amendment may not, and often does not, operate as a repeal, but merely as an addition to the statute of which it is amendatory. This can never be the effect or operation of a repealing statute, whether the repeal be by implication or be direct. A repeal is properly defined to be "the abrogation or destruction of a law by a legislative act." Amendment in legislation is "an alteration or change of something proposed in a bill or established as law. Bouv. Dictionary.

The jurisdiction to try offenses against ordinances of the municipality, civil cases, and offenders violating the criminal laws of the state, conferred upon some municipal officer, is not necessary to the act of incorporation. An independent act, conferring jurisdiction of offenses against city ordinances and of offenses against the criminal laws of the state upon any other judicial tribunal, would not offend the Constitution or charter act creating and conferring corporate powers upon the municipality; and where such a tribunal was established, as here, by an independent act, the corporate powers granted the municipality were neither enlarged nor diminished by it. It is true the jurisdiction of the mayor of the municipality was diminished because his right to try certain offenses was taken away; but we apprehend this did not affect the corporate powers of the municipality. His right to exclusive jurisdiction as a court was not derived from the corporation, nor as mayor was he virtute officii possessed with such a right. This being true, the repeal effected by the act creating the inferior court, known as the "recorder's court," in no proper sense amended the charter of the corporation. That act was and did not become in part the charter power of the municipality. To repeat, it simply repealed by implication certain powers conferred upon an offiecr of the municipality--the mayor.

These views are in full accord with, and are supported and sustained by, all the decisions of this court except the case of Little v. Huey, 137 Ala. 659, 35 So. 134, from which the writer dissented. In Ex parte Pollard, 40 Ala. 77 the question was presented whether an independent act, which repealed by implication certain other statutes,...