State v. Lea

• Decision Date: 13 December 1923
• Docket Number: 6 Div. 56.
• Citation: 99 So. 170,211 Ala. 68
• Parties: STATE EX REL. GRISWOLD v. LEA.
• Court: Alabama Supreme Court

99 So. 170

211 Ala. 68

STATE EX REL. GRISWOLD v. LEA.

6 Div. 56.

Supreme Court of Alabama

December 13, 1923

Rehearing Denied Feb. 16, 1924.

Appeal from Circuit Court, Jefferson County: Richard V. Evans Judge.

Quo warranto by the State of Alabama, on the relation of D. M Griswold, against Thomas R. Lea. From a judgment sustaining demurrer to the information or complaint, plaintiff appeals. Reversed and rendered.

Richard H. Fries, of Birmingham, for appellant.

Beddow & Oberdorfer and Stokley, Scrivner, Dominick & Smith, all of Birmingham, for appellee.

Cabaniss Johnston, Cocke & Cabaniss, of Birmingham, amicus curiæ.

THOMAS J.

The citizen's petition (Code, 1907, § 5453; Montgomery v State ex rel. Enslen, 107 Ala. 372, 18 So. 157; State ex rel. Vandiver v. Burke, Judge, 175 Ala. 561, 57 So. 870; State ex rel. Barrick v. Davidson, 208 Ala. 157, 93 So. 870) is quo warranto, testing the constitutionality of the act of August 29, 1923, "to establish [in the territory indicated] *** the Birmingham court of common claims." Section 1 of act.

The title of the act is:

"To establish an inferior statutory court to be called the Birmingham court of common claims; to provide for the judges, clerks, and other officers, their appointment, duties and compensation; to provide for the jurisdiction, practice and procedure of said court; to provide for the transfer of causes from said court to the circuit court; and to provide for appeals from said court to the circuit court, and the procedure in the circuit court on appeal or transfer of said causes." Local Acts 1923, p. 112.

It is averred, among other things, that the respondent-

"usurps, intrudes, or unlawfully holds or exercises and draws the salary of a public office of profit *** as ex officio judge of Birmingham court of common claims, Second division."

This was sufficient general averment of the term of office and usurpation. Jackson v. State ex rel. Tillman, 143 Ala. 145, 42 So. 61; State ex rel. Knox v. Dillard, 196 Ala. 539, 546, 72 So. 56.

The constitutionality of the act is challenged by this proceeding on grounds, among others, (1) that its title and body contain two subjects, contrary to section 45 of the Constitution; and (2) that sections 9 and 10 of the act are repugnant to provisions of section 280 of the Constitution, forbidding the holding, at the same time, of two separate and distinct offices of profit under the state.

Demurrer was sustained to the petition as last amended, and judgment was against petitioner and for costs.

It is provided in section 2 of the act that-

"This court shall have and exercise concurrently with all other courts having like jurisdiction in said county, for and in all of Jefferson county [except territory excluded in section 3 of the act] *** all the jurisdiction and power which now are, or which hereafter may be by law conferred upon the circuit court *** in actions at law, where the amount involved does not exceed five hundred dollars."

And section 4 declares that the court shall have no jurisdiction of criminal offenses, of suits in ejectment, or in equity. In section 3 the venue or "jurisdiction" of the court is declared not to extend to or embrace the several precincts enumerated by name and Nos. 1, 2, 3, 4, 5, 7, 24, 27, 33, 35, 40, 41, 49, 51, 53, and 55. In section 5 of the act it is declared that the court shall have authority "to exercise original jurisdiction of all suits and actions at law, including libel, slander, assault and battery, when the matter or sum in controversy does not exceed five hundred dollars." (Italics supplied.)

This is in excess of the powers of a justice of the peace. Const. § 168; State v. Roden, 15 Ala. App. 345, 391, 73 So. 657; Code, 1907, § 4642. And it is provided (section 8) that the court shall "have jurisdiction over cases under the Workmen's Compensation Act when the matter or sum in controversy does not exceed five hundred dollars;" that (section 7) "such judges and courts have authority to grant writs of attachment and garnishment;" and (section 6) said judges are denied the authority to grant writs of certiorari, supersedeas, quo warranto, mandamus, injunctions or ne exeat.

Provision is sought to be made, in section 9 of the act, for two divisions of the court and respective judges thereof-that the "judges of the municipal court of Birmingham shall be ex officio judges of this court," viz.: The judge of the first division of the municipal court shall be ex officio judge of the first division of the court sought to be created by the act, and the judge of the third division of the municipal court shall be ex officio judge of the second division of the Birmingham court of common claims. The compensation of the judge "for his services as such ex officio judge of this court" is fixed at $1,200 per annum (section 10); ex officio clerks and assistant clerks, each at the salary indicated (sections 11, 12, 13); and there is further provision for additional assistant clerks, if "the business of the court justifies," and for the payment thereof (section 13). The conditions for official bonds are prescribed in section 14. In section 15 it is provided that the bailiff's in the first and third divisions of the municipal court shall be bailiffs of the court of common claims, and provision made for the payment of such services.

It is provided in section 16 of the act:

"The constable of precinct 37 of Jefferson county, Alabama, shall be ex officio officer of this court, and shall be required to attend its hearings and may serve any of its processes and writs by himself or his duly appointed deputies in any part of the territory over which this court shall have jurisdiction and shall receive for such services the same fees as provided by law for like services by the sheriff of Jefferson county. The said constable as to any or all writs or processes of this court shall have all the power and authority conferred by law upon sheriffs of Jefferson county."

This is a broader power than that usually conferred upon constables in the several precincts of the county. Code 1907, § 3329; Henry v. Waldrop, Clerk, 206 Ala. 135, 89 So. 371.

Section 17 of the act provides for the conduct of business by the two judges; that each judge "may sit and hold court in any other divisions," may "transfer causes" to the other divisions.

Section 21 of the act provides that a judgment of the court shall not be required to be more formal than that rendered by a justice of the peace; and section 22 provides that "fees and costs" that are allowed by law "in the circuit court of Jefferson county" (except library tax) are required to be taxed, collected, and paid into the county treasury as may be required by law.

Time and manner of notice and pleadings, answers of garnishees, the taking and setting aside of judgments by default, are, respectively, prescribed in sections 23, 24, 25, and 31 of the act; and it is declared, of the right of trial by jury, that (section 26) "the plaintiff electing to bring suit in this court shall endorse upon his complaint that he waives a trial by jury, and his election to file his suit in this court shall be deemed as a matter of law as his waiver of his right to have such cause tried by a jury;" and further provision for a trial without a jury (unless demanded, as provided for and required of a party at interest, indicated, "at the time of his appearance" and not later than the return day of the process) is contained in sections 27 and 28.

It is also provided that when a jury trial is demanded as required by the act, after pleadings are settled and an issue of fact to be tried by jury is tendered, the cause shall be transferred "to the circuit court of Jefferson county and the said cause shall there proceed as if said cause had originated in said circuit court" (section 28), and it is made the duty of the presiding judge of the circuit court "to cause such cases so transferred to be promptly set" and tried, and it is provided that liberal "allowance of amendments as to parties, form, or cause of action, or statement of the cause of action, necessary to reach the merits" be indulged or exercised by the trial court (section 29).

In section 30 of the act, the terms of the court are declared to be by the year-from January 1st to the 31st day of December; judgments are made final after ten days, when no new trial or rehearing is duly moved for within that time, pending or duly continued.

Provision is made for the transfer of pending causes to the circuit court "when the business of this [common claims] court" warrants; and the "presiding judge of the circuit court," or the judge acting as such, is given the authority to require "any of the judges of this [common claims] court to sit in the circuit court upon the trial of causes transferred or appealed from this [Common Claims] court to the circuit court," provided the judge shall not hear "a cause on appeal which said judge tried" in the court of common claims. Section 41.

Other provisions of the act are that witnesses shall receive the same mileage and per diem allowed in the circuit court (section 44); that the sheriff shall execute writs and processes as required of him by the court (section 46); that all parts of laws in conflict with the provisions of the act are repealed (section 47); that if any section or provision is held to be unconstitutional it shall not affect the other sections or provisions of the act (section 48).

It will be noted that, though the court is called, in the title of the act, "an inferior statutory court," it is not an inferior court established under section 168 of the Constitution, "for such precinct or precincts in lieu of all justices of the peace therein." It is its best interpreter-an...