State v. Torbert

• Decision Date: 28 June 1917
• Docket Number: 2 Div. 647
• Citation: 200 Ala. 663,77 So. 37
• Parties: STATE ex rel. GARRETT et al. v. TORBERT.
• Court: Alabama Supreme Court

77 So. 37

200 Ala. 663

STATE ex rel. GARRETT et al. v. TORBERT.

2 Div. 647

Supreme Court of Alabama

June 28, 1917

On Rehearing, October 2, 1917

Appeal from Circuit Court, Hale County; B.M. Miller, Judge.

Quo warranto proceeding by State of Alabama, on the relation of Cad Garrett and others, against W.E. Torbert. From the judgment, relators appeal. Judgment affirmed.

R.B Evins, of Greensboro, for appellants.

Thomas E. Knight, of Greensboro, for appellee.

MAYFIELD J.

This is a statutory quo warranto proceeding, to determine whether or not there is a county court for Hale county, by virtue of the general act of the Legislature approved September 25, 1915 (Acts 1915, p. 862 et seq.), and whether or not, if there be such a court, the probate judge of that county is ex officio judge and clerk thereof.

While there is no specific prayer to determine the first question yet the last two cannot be decided without determining the first.

We apprehend that there can be no doubt that statutory quo warranto is the proper proceeding to judicially determine these questions. See chapter 128, §§ 5453-5472, of the Code of 1907, and cases cited in annotations thereto.

Article 3 of chapter 198 of the Code (sections 6696-6732), and its progenitors in the Codes of 1896, 1886, 1876, 1867, and the Penal Code of 1866, provided a system of county courts extending, with an occasional exception, to each of the counties of the state. At different times, however, since the Penal Code of 1866 which created the system, various local statutes have been passed, taking various counties out of the Code provisions, and substituting entire and radical departures from the general Code provisions, for the trial of misdemeanor cases in the counties affected. A number of such statutes was passed at nearly every session of the Legislature. Sometimes the local act provided for a county court in lieu of the court provided in the Code; sometimes it created a court known as, and called, a law and equity court, and conferred thereon the jurisdiction of the original county court; and sometimes the local act merely amended certain sections of the Code relating to county courts. Again, some of these local acts, in turn, have been repealed, restoring the application of the Code provisions to the county affected; and some of the local acts were in turn amended. So until the general act of 1915 (above referred to) became effective, the Code provisions had not for a long period applied to all the counties of the state, nor even to all the counties which had county courts. And even now there are certain counties which, by express terms, are excepted from the operation of the Code provisions, by virtue of the act of 1915 (page 862); but such fact has no importance on this hearing.

By virtue of the Code provisions, the probate judge of the county is made ex officio judge and clerk of the county court. In some of the counties having county courts since the Penal Code of 1866, other judges, by virtue of local acts, have been provided for the county courts, and the clerks of the circuit courts made ex officio clerks of the county courts. The history of these statutory provisions was referred to in the case of State ex rel. Vandiver v. Burke, Judge, 175 Ala. 561, 57 So. 870; Balkum's Case, 40 Ala. 671; Roundtree's Case, 51 Ala. 47, 48.

Hale county is one of the several counties in which the Code provisions relating to county courts have been replaced or substituted by the provisions of local acts creating county courts or law and equity courts; and such local acts were in force, and were being operated under, at the time of the passage of the general act of 1915, p. 862. But all such acts were probably attempted, and intended, to be repealed by the general act above referred to, as well as by other general acts passed at the same session of the Legislature, embodied therewith as parts of the general scheme of reformed judicial procedure in this state. It is a matter of common knowledge that the Legislature of 1915 appointed a committee, to sit during recess, for the purpose of preparing and adopting bills for a revision of the judicial system of this state, and that this committee reported back to the Legislature a great number of bills; and that many of the recommended bills were enacted into laws at that session--one being the act in question (page 862). These various acts being considered by the Legislature at the same time, and entering into the revised judicial system of the state, must, to some extent at least, be construed in pari materia. So construing this act, its effect was to repeal the various acts for Hale county, pertaining to the county court, in so far as they were not otherwise saved from repeal by this, and other acts; and to put in force, in Hale county, the Code provisions relating to county courts, except as the act in question, or other general acts in force, might apply to such court in that county.

It is insisted first, that the provisions of the act of 1915 (page 862), which were intended to apply the Code provisions pertaining to county courts, were invalid, because section 45 of the Constitution would be violated, in that the effect thereof was to re-enact, amend, or extend the provisions of other laws, without setting out at length the laws so re-enacted, amended, or extended. We cannot accede to this insistence, for the reason that the general act of 1915 (page 862), nor the parts thereof in question, are not a re-enacting, amending, or extending statute, within the inhibition of section 45 of the Constitution. The statute, nor the provisions in question, do not belong to that class of bills or acts by the Constitution makers intended to be prohibited by section 45 of the Constitution. The act in question does not purport to be a revisory or an amendatory statute, but is in form original, intelligible, and complete.

The leading decision in this state, construing this clause of section 45 of the Constitution, or its progenitor in the Constitution of 1875, is probably that of State ex rel., etc., v. Rogers et al., 107 Ala. 444, 19 So. 909, 32 L.R.A. 520, which case has been many times cited and followed by this court; and our Constitution has been readopted without material change in this respect. In that case it was said (first quoting from Ex parte Pollard, 40 Ala. 98):

" 'It was never intended by the Constitution that every law

which would affect some previous statute or variant provisions on the same subject should set out the statute or statutes so affected at full length. If this were so, it would be impossible to legislate. The constitutional provision reaches those cases where the act is strictly amendatory or revisory in its character. Its prohibition is directed against the practice of amending or revising laws by additions, or other alterations, which without the presence of the original act are usually unintelligible. If the law is in itself complete and intelligible, and original in form, it does not fall within the meaning and spirit of the Constitution.' All the purposes of the present act could doubtless have been accomplished by an act strictly and in form amendatory, by setting out the existing statutes, amending and re-enacting them; but it is obvious the amendatory act would have been cumbersome, and not more

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