Woods v. Wood

• Decision Date: 06 June 1929
• Docket Number: 7 Div. 871.
• Citation: 122 So. 835,219 Ala. 523
• Parties: WOODS v. WOOD.
• Court: Alabama Supreme Court

122 So. 835

219 Ala. 523

WOODS v. WOOD.

7 Div. 871.

Supreme Court of Alabama

June 6, 1929

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Petition of J. E. Wood for mandamus to M. B. Woods, Judge of the Inferior Court of Gadsden. From a judgment for petitioner respondent appeals. Reversed and remanded.

Inzer Inzer & Davis, of Gadsden, for appellant.

Hood &amp Murphree, of Gadsden, for appellee.

BOULDIN J.

"Gadsden Inferior Court" was created by local act of August 26 1927. Local Acts 1927, p. 294. It has jurisdiction in lieu of justices of the peace in precincts Nos. 1 and 26 in Etowah county.

This is a proceeding by mandamus instituted by the constable elected and qualified in precinct No. 1 against the judge of such inferior court to require him to place process of the court in the hands of petitioner for execution.

Process of such court is directed to "any lawful officer of Etowah County," and shall be executed by the "sheriff, one of his deputies or a constable." Section 8 of Creative Act (Laws 1927, p. 295).

In a hearing upon petition and answer, or upon demurrer testing the sufficiency of the answer, the facts set up by answer in denial or avoidance are taken as true.

Facts alleged in the petition and not denied in the answer are taken as true.

Thus considered, the facts are that the judge of such court has not placed any of the process issuing from his court in the hands of the constable for execution, has refused on demand to do so, and has declared a purpose to so continue. The judge does not question the competency of the constable to execute process; but proceeds on the idea that he has an absolute discretion in the matter, that in his judgment the work can best be handled by one man, and accordingly continues to deliver process to a deputy sheriff acting in that capacity when petitioner was elected. He also appoints special constables in emergency cases.

The office of constable is recognized in the Constitution. In each precinct lying wholly without the corporate limits of a town of 1500 or more inhabitants the election of two justices of the peace and one constable is made mandatory. When one or more precincts lie within or partly within such town or city, the Legislature is vested with a discretion to provide an inferior court in lieu of all justices of the peace. Constitution, § 168.

The Legislature is left free in providing executive officers for such inferior courts, except as this may result from other constitutional provisions.

By a statute a constable is made a conservator of the peace within his county. Code, § 6798.

While he is required to attend the circuit court when summoned by the sheriff, and has some other duties, he may be deemed primarily the executive officer of his precinct and of the justice courts sitting therein. Code, § 6799.

These constitutional and statutory provisions are to be kept in mind in construing the Gadsden inferior court act. The civil process of such court is directed to the same officers as like process from justices of the peace. Code, §§ 8709, 8731, 8753.

We do not question that the judge of this court is vested with a discretion, no less than that of a justice of the peace, in placing process in the hands of the sheriff, a deputy acting for and under him, or a constable.

In this regard this case differs from that of Jeter v. State, 218 Ala. 12, 117 So. 460, dealing with the Brimingham Municipal Court Act (Loc. Acts 1915, p. 231). There, as here, the sheriff and constables were made executive officers of the court, with a further provision that each constable has the "right to demand" process for execution in his precinct.

Dealing with the discretion vested in the judge of the Gadsden inferior court, the law intends to make available more than one officer to the end that process may be promptly executed. In emergency cases special constables may be appointed. The justice or judge invested with like powers is the judge of such emergency in so far as relates to the legality of the appointment and the official acts of the appointee. Noles v. State, 24 Ala. 672. Many contingencies may be imagined wherein the prompt and effective administration of justice may suggest that process be turned over to one officer rather than another.

This court would not set such bounds upon the discretion given by law in such cases as to defeat the purposes of such discretion.

But we are not prepared to say the discretion here involved is an arbitrary power to determine who shall be the lawful executive officers of the court. To say one of the officers named by law shall have none of its process which he is competent, ready, and willing to serve is to arbitrarily deprive him of the emoluments thereof; is to abolish an office created by law in so far as made an officer of that court.

In thus...