Thomas v. State

• Decision Date: 07 June 1917
• Docket Number: 3 Div. 298
• Parties: THOMAS, Clerk of Circuit Court, v. STATE ex rel. ARMSTRONG.
• Court: Alabama Supreme Court

77 So. 35

200 Ala. 661

THOMAS, Clerk of Circuit Court, v. STATE ex rel. ARMSTRONG.

3 Div. 298

Supreme Court of Alabama

June 7, 1917

On Rehearing, October 2, 1917

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

Mandamus by the State, on the relation of James Armstrong, against John M. Thomas, as Clerk of Circuit Court of Conecuh County. The writ was granted, and the Clerk appeals. Reversed and rendered on rehearing.

J.S Stearns, of Evergreen, for appellant.

Page &amp McMillan, of Evergreen, for appellee.

N.D Denson & Sons, of Opelika, amicus curiae.

MAYFIELD J.

This is a mandamus proceeding, to compel the clerk of the circuit court of Conecuh county to issue subpoenas to witnesses in the county court of Conecuh. The writ was issued by the circuit court, or the direction was that it issue as prayed; and from that decretal order respondent clerk prosecutes this appeal.

The suit is evidently a friendly one, and is intended to secure decision by this court of the question whether the clerk of the circuit court or the judge of the probate court shall perform the clerical duties of the county court of Conecuh. This question is made to depend upon a construction of the general act of September 25, 1915, re-establishing the county courts in the various counties in the state in which such courts had been theretofore abolished or substituted by other courts.

It is insisted by appellant that the local act of 1898-99 (Acts, p. 1507), which authorized and required the clerk of the circuit court of Conecuh county to perform the clerical duties of the county court of such county was repealed by the general act of 1915, above mentioned, and by the provisions of the Criminal Code thereby made applicable to the county court of Conecuh; and that in consequence the probate judge of such county is now required to perform and discharge the duties pertaining to the office of clerk of the county court.

This record contains the following recital, as a part of the agreed statement of facts upon which the circuit court heard and decided the case when presented to that court:

"The sole and only question raised by this record is whether or not the local act of the Legislature of Alabama, 1898-99, page 1507, entitled 'An act to require the clerk of the circuit court of Conecuh county to perform the duties of the clerk of the county court of said county and fixing his fees for such services,' has been repealed, and if the said act has not been repealed, then the said John M. Thomas is clerk of the county court of Conecuh county, Alabama."

We are of the opinion that the circuit court reached the correct conclusion, and that the mandamus was properly awarded. There can be no doubt that if the general act of September 25, 1915 (Acts, p. 862), is valid (and its validity is not now questioned, the question submitted to us for decision being merely one of partial construction), the clerk of the circuit court is ex officio clerk of the county court, and is required to perform and discharge the duties of such office, which include the duties here sought to have performed. While the general act does in terms repeal local and general acts in conflict with its provisions, and thereby in part puts in force the Code provisions of article 3, c. 198, of the Criminal Code, yet it does not have the effect to give force and operation to all the Code provisions which require the probate judge to perform the duties of the clerk of the county court. This is made certain by the fact that the recent general statute (of 1915, p. 865) expressly provides that the clerks of the circuit courts, in the cases mentioned, shall be ex officio clerks of the county courts. So it is immaterial whether the local law for Conecuh county is repealed or not; if repealed, it was, to the extent this proceeding is concerned, re-enacted by the general statute which repealed it. It is never advisable to decide questions not raised, nor even to discuss them except so far as it is necessary to decide the question in issue. We therefore refrain from further discussion of the statutes in question, general or local; and from intimating what particular sections of the Criminal Code, embraced in article 3, c. 198, are now in force or not in force, so far as the Conecuh county court is concerned. Construing them all together, we are satisfied that the clerk of the circuit court of Conecuh county is ex officio clerk of the county court of that county, and that he is authorized and required to discharge the clerical and other duties of the position in question.

It results that the mandamus was properly awarded directing him to discharge those duties as prayed in the petition for the writ.

Affirmed.

ANDERSON, C.J., and SOMERVILLE and THOMAS, JJ., concur.

On Rehearing.

PER CURIAM.

We were in error in holding that the provision of the act of 1915 (page 865), which provides that the clerk of the circuit court shall be ex officio clerk of the county court, applied to the county of Conecuh, and therefore to appellee and appellant respectively. It now appears certain that Conecuh county is not within this provision, and that section 6698 of the Code governs as to that county, and therefore determines the rights and duties of both appellant and appellee as to issuing subpoenas to witnesses in the county court of Conecuh county. This section of the Code reads as follows:

"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 probate judge must therefore perform the clerical duties pertaining to the office of the county court in Conecuh county, or, at his own expense, employ a clerk so to do--which ruling, of course, excludes appellant, as clerk from performing such clerical duties as pertain to the county court of that county.

It therefore follows that the local act of 1898-99, for Conecuh county (page 1507), was repealed by...