State v. Roden

• Decision Date: 14 November 1916
• Docket Number: 2 Div. 155
• Citation: 15 Ala.App. 385,73 So. 657
• Parties: STATE v. RODEN.
• Court: Alabama Court of Appeals

73 So. 657

15 Ala.App. 385

STATE v. RODEN.

2 Div. 155

Court of Appeals of Alabama

November 14, 1916

Appeal from City Court of Selma; J.B. Evans, Judge.

Proceeding by the State of Alabama, against Israel Roden. From an order discharging Roden the state appealed to the Court of Appeals which certified the question of the constitutionality of Acts 1915, p. 436, to the Supreme Court. Opinion declaring the law unconstitutional certified to Court of Appeals, which thereupon affirmed Roden's discharge.

W.L. Martin, Atty. Gen., H.G. Davis, Asst Atty. Gen., and Pettus, Fuller & Lapsley, of Selma, for the State.

Arthur M. Pitts and Reese & Reese, all of Selma, for appellee.

Opinion or Certificate of Court of Appeals.

BROWN J.

Section 139 of the Constitution provides that:

"The judicial power of the state shall be vested in the Senate sitting as a court of impeachment, a supreme court circuit courts, chancery courts, courts of probate, such courts of law and equity inferior to the Supreme Court, and to consist of not more than five members, as the Legislature from time to time may establish, and such persons as may be by law invested with powers of a judicial nature; but no court of general jurisdiction, at law or in equity, or both shall hereafter be established in and for any one county having a population of less than twenty thousand, according to the next preceding federal census, and property assessed for taxation at a less valuation than three million [three] hundred thousand dollars."

Within the limitation placed upon it by this section of the Constitution and section 168, the Legislature may establish such inferior courts, and confer upon them such jurisdiction and power as it may deem expedient. State v. Sayre, 118 Ala. 1, 24 So. 89; Perkins v. Corbin, 45 Ala. 118, 6 Am.Rep. 698. Therefore the insistence of appellee that the court created by the act in question (Acts 1915, p. 436) is given jurisdiction in excess of that authorized by section 168 of the Constitution, and is therefore void, cannot be sustained. If the Legislature had gone no further than to create an inferior court for precinct 36 and in lieu of the justices of the peace of said precinct, and had undertaken to confer jurisdiction in excess of that authorized by section 168 of the Constitution, a different question would be presented. Alford v. Hicks, 142 Ala. 355, 38 So. 752. The declaration found in section 1 of the act, "and which shall be in lieu of all the justices of the peace of said precinct," and the provisions of section 10 of the act attempting to abolish the offices of justice of the peace and constable of precinct 36, if the act was free from another constitutional objection presently to be noticed, could be stricken out of the act, leaving a complete enactment. State ex rel. Clarke v. Carter, 174 Ala. 266, 56 So. 974; Harper v. State, 109 Ala. 32, 19 So. 857; Powell v. State, 69 Ala. 13.

The insistence that the provisions of the act making the clerk of the circuit court ex officio clerk of the inferior court is a violation of section 280 of the Constitution, inhibiting the holding by the same person of two offices of profit at the same time, is fully answered in State ex rel. Vandiver v. Burke, 175 Ala. 561, 57 So. 870, and State ex rel. Clarke v. Carter, supra.

The notice given in compliance with section 106 of the Constitution is comprehensive enough to authorize the establishment of a court, either within section 139 or section 168, leaving to the Legislature the discretion of working out the details of the enactment, and was sufficient to advise the body of the public interested in the legislation that an act such as was passed would be the result of the proposed effort. Christian v. State, 171 Ala. 52, 54 So. 1001; Ex parte O'Neal, 154 Ala. 237, 45 So. 712.

The writer, however, is driven to the conclusion that both the act and its title are duplex, in that both embrace the subjects of establishing a court for Dallas county with jurisdiction superior to that of justices of the peace, and also the subject of abolishing the office of justice of the peace and constable of precinct 36, and establishing a court in lieu of justice of the peace of said precinct.

Section 168 of the Constitution is a limitation on, as well as a grant of authority to, the Legislature to abolish the office of justice of the peace in precincts within, or partly within, cities or incorporated towns with a population of 1,500 inhabitants. This office cannot be abolished unless a court of the same jurisdiction is created within and for that precinct, with jurisdiction not in excess of that specified in that section. Alford v. Hicks, supra. And the authority to abolish the office of justice of the peace and establish a court in lieu thereof is referable to this section, while the authority to establish a court of larger jurisdiction within the limitation of section 139, supra, is not by specific grant of authority, but is within the power inherent in the Legislature as a co-ordinate branch of the government, not encroached upon by constitutional limitation further than that:

"No court of general jurisdiction, at law or in equity, or both, shall hereafter be established in and for any one county having a population of less than twenty thousand according to the next preceding federal census and property assessed for taxation at less valuation than three million three hundred thousand dollars."

The abolishment of the office of justice of the peace is not germane to the subject of establishing a court of superior jurisdiction to that of justice of the peace, and the provision of an act establishing such a court, providing for the abolition of such offices, could not be sustained, no matter how broad and comprehensive the title. Const. 1901, § 168.

In short, the effect of the two sections of the Constitution adverted to is to make the subject of establishing a court under section 168 in lieu of justice of the peace, and abolishing the office of justice of the peace, a separate and distinct legislative subject to that of creating a court of superior jurisdiction under section 139.

The title and body of the act both embracing the two subjects of legislation makes the act offensive to the provisions of section 45, and the entire act must fall. Ballentyne v. Wickersham, 75 Ala. 533; Ramagnano v. Crook, 85 Ala. 229, 3 So. 845; City of Mobile v. L. & N.R.R. Co., 124 Ala. 143, 26 So. 902; Gandy v. State, 86 Ala. 20, 5 So. 420.

If only the title was double and the act contained but one subject, that part of the title not germane to the act would be treated as surplusage, and the act upheld; or, if the title was single, containing but one subject, and the act double, that part of the body of the act not germane to the title would be regarded as surplusage, and the act sustained. Judson v. City of Bessemer, 87 Ala. 240, 6 So. 267, 4 L.R.A. 742; Chattanooga Savings Bank v. Tanner, 157 Ala. 502, 47 So. 790; Hawkins, Tr., v. Roberts & Son et al., 122 Ala. 130, 27 So. 327. But when two subjects are stated in the title and the act contains provisions pertinent and germane to both of those subjects, the act is within the inhibition of the Constitution and the legislative effort abortive.

The question disposed of in Smith v. Stiles, 70 So. 905, is distinguished from the question here by the fact that there is no restriction in the Constitution, as here, that the court created in lieu of the chancery court could have no broader jurisdiction than the chancery court as it then existed. If there had been such restriction, no doubt the result reached in that case would have been entirely different. The establishment of an inferior court in lieu of justice of the peace courts, under section 168 of the Constitution, as construed by the Supreme Court, amounts to but little more than a change of name; while the effect of the legislation sustained in Smith v. Stiles was to confer upon the circuit courts of the several counties of the state all the jurisdiction and authority of the chancery courts and courts of like jurisdiction, and abolishing all such courts.

Certified to the Supreme Court under the provisions of the act approved April 18, 1911.

EVANS, J. (in which PELHAM, P.J., concurs).

I concur in the result reached in this opinion; but for the reason set forth below:

The plain purpose and intent of the Legislature, as is apparent from the title and body of the act in question, was to create, for precinct 36, Dallas county, an inferior court which should be in lieu of justices of the peace; the court so created to have the jurisdiction of justices of the peace, with a superadded jurisdiction in misdemeanors concurrent with the circuit court.

The act as framed is violative of section 168 of the Constitution in conferring a jurisdiction in excess of that of a justice of the peace. Alford v. Hicks, 142 Ala. 355, 38 So 752. If the portions of the act in sections 1 and 10 should be stricken, as suggested in the opinion of my Brother BROWN, so as to save the act, the product, as reformed and fabricated by the pruning process, would be an act quite different from that intended by the legislative will. The result, then, would be that we would have both courts, the inferior court and the justice court; the former then being authorized under section 139 of the Constitution, and not being, as was intended, a substitute for the justices' courts. Hence we would have a duplication of judicial machinery, where it was only necessary and plainly and expressly intended there should be only one; in other words, the reformation of the act would be tantamount to judicial legislation, and that, too, in violation of the legislative will. Speaking of striking invalid portions of an act,...