State v. McLellan

• Decision Date: 06 June 1918
• Docket Number: 3 Div. 358
• Citation: 79 So. 379,202 Ala. 41
• Parties: STATE ex rel. ADAMS v. McLELLAN.
• Court: Alabama Supreme Court

79 So. 379

202 Ala. 41

STATE ex rel. ADAMS v. McLELLAN.

3 Div. 358

Supreme Court of Alabama

June 6, 1918

Appeal from Circuit Court, Escambia County; A.E. Gamble, Judge.

Quo warranto by the State of Alabama, on the relation of R.E Adams, against M.R. McLellan. From an order for respondent the State appeals. Order affirmed.

G.W.L Smith, of Brewton, for the State.

Hamilton & Leigh, of Brewton, for appellee.

McCLELLAN J.

Quo warranto to determine whether the clerk of the circuit court of Escambia county (relator) is still the clerk of the county court of Escambia county, as provided in local acts approved February 26, 1889 (Acts 1888-89, p. 657); or whether the judge of the county court of Escambia county is the clerk of the county court, as provided in Code, § 6698, reading:

"The judges of the county courts are the clerks of their respective courts, but may, at their own expense, employ a clerk, who may do all acts not judicial in their character."

The application of the quoted statute (section 6698) depends upon the effectiveness, the validity of the act approved September 25, 1915 (Gen.Acts 1915, pp. 862-865), bearing this title:

"An act to re-establish the county courts which are provided for in article three (3) of chapter one hundred and ninety-eight (198) of the Code of Alabama in all counties wherein the same have heretofore been abolished, except in counties having a population of fifty thousand (50,000) or more according to the last preceding Federal census, and to define the power, jurisdiction and duty of all the county courts which are hereby re-established and of all the county courts which are provided for by article three (3) of chapter one hundred and ninety-eight (198) of the Code of Alabama, and to prescribe the manner in which prosecutions for misdemeanors shall be begun, tried and determined therein and appeals taken, therefrom, and to transfer all indictments pending in any county court to the circuit court of the county where found for trial therein, and to repeal all laws, whether local, general or special, in conflict with the provisions of this act."

If the act of 1915 was enacted according to the forms prescribed in the Constitution, and if it offends no provision of the organic law, one of its effects was to constitute the judge of the county court of Escambia county the clerk thereof in virtue of the restored provisions of Code, § 6698, operating to repeal the local act whereby the clerk of the circuit court of Escambia county was constituted the clerk of the county court. Thomas and Torbert Cases, cited infra. A large number of objections are laid against the act of 1915 that are predicated of asserted offendings therein or thereby of provisions of the Constitution. Several of these objections express the contention that the act of 1915 is a "local," not a "general," law, as those laws are defined in section 110 of the Constitution. In responses to applications for rehearing in Thomas v. State ex rel., etc., 77 So. 35, 36, 37, and in State ex rel., etc., v. Torbert, 77 So. 37, 39, 40, the act of 1915 was held to be a general, not a local, law. The court continues satisfied with the conclusion then attained and given effect. It results that objections numbered 1, 2, 3, 4, 5, and 8 in the demurrer to the answer, based upon or referable to the idea that the act of 1915 is, in any respect, a local, not a general, law, are without merit. It is settled in this jurisdiction that classification, for legislative purposes, may be validly predicated of population as shown either by a past or a future census. Board of Revenue v. Huey, 195 Ala. 83, 89, 70 So. 744.

That the above-quoted title of the act of 1915, when read in connection with the body thereof, manifests a compliance with the requirements of section 45 of the Constitution, is not, we think, debatable. Torbert's Case, supra. According to the same authority, the act of 1915 efficiently, validly applied the provisions of article 3 of chapter 198 of the Code of 1907 to the re-established county courts, except as the act of 1915, itself, otherwise prescribes.

It is insisted that this act offends section 96 of the Constitution. That section reads:

"The Legislature shall not enact any law not applicable to all the counties in the state, regulating costs and charges of courts, or fees, commissions or allowances of public officers."

The argument is that the whole act is invalid because the effect of the act's provisions is to destroy the uniformity exacted by section 96 of the Constitution. See opinion of Justice Thomas in Osborn v. Henry, 76 So. 119. In section 7 of the act it is provided:

"That if any section, clause or provision of this act shall be declared to be unconstitutional it shall not be held to affect any other section, clause or provision, but the same shall remain in full force and effect."

If it should be assumed, for the occasion only, that provisions of the act effected to destroy the uniformity exacted by section 96 of the Constitution, the provisions so operating can be stricken from the act, thus eliminating the separable invalid portions, and leaving a complete, sensible enactment that is capable of observance and enforcement. State ex rel etc., v. Montgomery et al., 177 Ala. 212, 240-242, 59 So. 294, and cases cited. When the courts are properly invoked to determine the measure of the compensation to be paid officers for services within the purview of this act of 1915, the question whether particular provisions of the act offend section 96 of the Constitution may be then considered and...