In my opinion, the local act approved September 23, 1915 (Local Acts 1915, pp. 436-440), is void, on the grounds to be stated.
In Alford v. Hicks, 142 Ala. 355, 38 So. 752, a decision made 12 years ago, and subsequently pointedly reaffirmed, in the presently pertinent particular, in Larkin v. Simmons,155 Ala. 273, 277, 278, 46 So. 451, decided in 1908, it is held that a local law is unconstitutional and void where the published notice (in an effort to comply with section 106 of the Constitution of 1901) of intention to propose its passage embraces a proposal to incorporate therein a provision which the Legislature cannot constitutionally enact; and so, notwithstanding the bill later actually taking the form of a law, does not contain the provision appearing in the published notice which the lawmakers were restrained by the Constitution from validly enacting. This rule is established; and, if the published notice here in question embraced a material provision, or provisions, which the Legislature was restrained by the Constitution from enacting, then the local law under consideration must be held to be void because of this vitiating defect in the published notice. This local law had for its paramount purpose the establishment of a court to be known and designated as the inferior court of Dallas county. Upon its establishment the further legislative purpose was, among others, to abolish the justice of the peace and justices' courts in precinct 36. It'is manifest from a consideration of the terms of section *Page 402 168 of the Constitution, in connection with the journal of the Constitutional Convention (see Journal Const. Conv. pp. 810, 1132-1134), as well as the official reports of the debates relative to what became of section 168, that that section restricts the legislative power to abolish justices of the peace to the creation of an inferior court of identical jurisdiction, with respect to subject-matter and territory, possessed by justices of the peace whose offices and courts are thereby alone permitted to be abolished. The published notice gave warning of a purpose to create a court with jurisdiction much greater than that of the justices of the peace the local law proposed to abolish. So, if the notice and the local act are exclusively measured by the provisions of section 168 of the Constitution, they both contain provisions with respect to jurisdiction offensive to that section. It, therefore, in my opinion, results that the notice was defective under the doctrine of the two decisions before cited.
I am disposed to think that, if the published notice had not included the expression of a purpose to move the Legislature to enact provisions offensive to section 168 of the Constitution, the invalid features of the local law could be eliminated, permitting the separable, valid provisions of the act to stand and to be effective. — State, ex rel. v. Montgomery, 177 Ala. 212,240-242, 59 So. 294. It will be noted that in section 26 of the local act it is provided: "That if any clause, provision or section of this act is held invalid, it shall not affect any other clause, provision or section not in and of itself invalid."
The effect of this provision was, as we held in the decision last cited, to exclude from consideration a recourse to the possible inquiry whether the Legislature would have enacted the law without these invalid provisions. In other words, the lawmakers have expressed, through section 26 of the act, the intention that, though invalid provisions are found in the act, they would still have enacted the law as it reads when so purged. — State, ex rel. v. Montgomery, 177 Ala. 212, 241,59 So. 294.