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 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 *Page 390 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 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, Mr. Justice McCLELLAN, in State, ex rel. Crumpton v. MontgomeryExcise Commissioners, 177 Ala. 212, 241, 59 So. 294, 302, remarks: "It is also to be said, in the nature of limitation of the rule stated, that the whole statute will be stricken if the valid and invalid parts are so connected and interdependent in subject-matter, meaning, and purpose that it cannot be presumed that the Legislature would have passed the one without the other, or where the striking of the invalid would cause results not contemplated or intended by the lawmakers, or where the invalid is the consideration or inducement of the whole act, or where the valid parts are ineffective and unenforceable in themselves, according to the legislative intent."
I do not assent to the view upon which Judge BROWN rests his opinion, to wit, duplicity of title. Suppose the act had not been vitiated by the superadded jurisdiction above mentioned, then the abolition of the justice court would have been incidental to and in furtherance of the purpose and design of creating the inferior court in lieu of the justice court; it would not have required one bill to abolish the justice court and another to create the inferior court, or, as denominated by Chief Justice ANDERSON in Smith v. Stiles, supra, 70 So. 905, "piecemeal or patchwork" legislation. The one general subject dealt with was the creation of an inferior court under section 168 of the Constitution in lieu of the justices' court. All things incident to and in furtherance of that general purpose and design were germane and cognate to the general subject-matter, and because the bill was erroneously drawn, rendering it unconstitutional, the incidental matters dealt with were none the less related or germane and cognate; for that is a matter that inheres in the nature of the subjects dealt with.
A comparison of the title and body of the act passed upon in the recent case of Smith v. Stiles, supra, and the title and body of the act before us in the instant case will demonstrate that the title to the act under consideration cannot be said to offend *Page 391 against section 45 of the Constitution, without we also hold that what is said in the Smith Case on this proposition is unsound, which would, in effect, be to overrule that case, while this court is required by statute to conform its holdings to those of the Supreme Court. See, also, Toole's Case,170 Ala. 41, 54 So. 195.
As said above, I concur in the result of Judge BROWN'S opinion, and think the act in question should be certified to the Supreme Court as unconstitutional.
OPINION IN RESPONSE TO QUESTION CERTIFIED BY THE COURT OF APPEALS. THOMAS, J.
The question of the constitutionality of a statute is by the Court of Appeals certified to the Supreme Court, for determination as by law in such cases made and provided. — Act April 18, 1911, p. 449; Cardwell v. State, 1 Ala. App. 10,11, 56 So. 12. The title of the act in question is: "To create and establish an inferior court for Dallas county, Alabama, in lieu of all justices of the peace in precinct No. 36 in said county, with the same jurisdiction and powers as are now vested in justices of the peace in said precinct, and with concurrent civil jurisdiction with all other justices of the peace in said county. and (1) with jurisdiction concurrent with the circuit court of said county, of all misdemeanors, except violations of the prohibition laws, violations of the laws against carrying concealed weapons and violations of the laws against carrying a pistol; and prescribing the powers and jurisdiction of said court, and the powers and duties of the officers thereof, and providing for the selection, qualification, terms of office and compensation of the officers thereof, and (2) abolishing the office of justice of the peace and constable in said precinct No. 36, and providing for the transfer to said court from the justice of the peace courts in precinct No. 36 of causes within the jurisdiction of such inferior court when established." — Local Acts 1915, p. 436, et seq.
The body of the act, conforming to its title, established "an inferior court in precinct number thirty-six in Dallas county, Alabama, * * * known and designated as the "inferior court of Dallas county,' * * * in lieu of all of the justices of the peace in said precinct," and provided that, "Subject to the limitations herein, the said court shall have all the original jurisdiction and powers both as to civil and criminal cases as is now or hereafter may be vested by law in the circuit court of said county, *Page 392 and in the justices of the peace of said precinct 36 of said county;" such provisions being embodied in section 1. By section 2, however, there was ingrafted the exception that said court should "have no jurisdiction of felonies, violations of the law relating to the carrying of pistols and concealed weapons, and the laws relating to alcoholic liquors, except such jurisdiction as is now or hereafter may be vested in committing magistrates of this state," and by section 3 the further exception that said court should not have jurisdiction "to try any civil cause involving the title to real estate, or in which the amount in controversy, exclusive of interest, costs and attorney's fees claimed, exceeds the sum of one hundred dollars, but subject to this limitation it shall have jurisdiction of all civil causes at law; the venue of which is in said Dallas county." By section 4 of the act, the right to summon grand or petit juries was denied to said court, it being therein provided that all causes, both civil and criminal, should be tried by the judge of said court without a jury, and that the person convicted should have the right of appeal to the circuit court. By section 10 of the act it was provided: "All cases pending in the court of justices of the peace in said precinct shall be forthwith transferred to the court herein established, and said court shall proceed with such cases in all respects as though they had been originally instituted in said court. That there shall be no justice of the peace elected or appointed in said precinct after this act becomes effective, and the offices of justice of the peace and constable in said precinct are hereby abolished."
In section 19 it is provided that all laws affecting or regulating practice and procedure in circuit courts shall be applicable to the inferior court, Dallas county, except as in the act otherwise provided; in section 20, that the judge of said court shall be liable to impeachment for the same causes and in the same manner as provided by law for impeachment of justices of the peace; and by section 25, that: "In the event of the sickness, unavoidable absence, or incompetency of the judge of said court, a special judge shall be appointed during such sickness, absence, or incompetency, in the same manner as provided by law for the appointment of a special judge in the circuit courts, who shall receive as compensation the sum of five dollars per day, to be paid by the county, for each day of such service as special judge."
It is further provided by the act that it shall be the duty of the circuit solicitor, himself or by deputy, to appear on behalf of *Page 393 the state of Alabama in all criminal cases in said court; that the fees and costs taxable in the circuit courts of this state shall be taxed and collected as now provided by law, in each case in said inferior court, etc.; that the sheriff of said county shall, himself or by deputy, attend said court whenever required by the judge thereof; that the judge of said court should be appointed by the Governor, to serve until the election provided by the act; that said judge shall be deemed a county officer within the meaning of the general election laws, and shall receive compensation as fixed by the act; and that the clerk of the circuit court for said county shall be ex officio clerk of said inferior court, and for services as such inferior court clerk shall receive compensation as fixed by the act.
The act further provides for the issuance and return of executions on judgments rendered in said court, for the collection of costs, etc., and that if any clause, provision, or section of the act should be held invalid, it should not affect any other clause, provision, or section not in and of itself invalid.
The title as well as the body of the act provides for the establishment of an "inferior court, Dallas county," in lieu of the justices of the peace in said precinct, with jurisdiction superior to that of a justice of the peace and concurrent with that of the circuit court of said county of all misdemeanors, except violations of the prohibition laws, of the laws against carrying concealed weapons and carrying a pistol, and also provides for the abolition of the offices of the justice of the peace in precinct No. 36, in Dallas county, Ala., and for the transfer to said inferior court, from said justice of the peace courts, pending "causes within the jurisdiction of such inferior court."
In section 168 of the Constitution, there is a limitation on the authority of the Legislature to abolish the office of justices of the peace of one or more precincts, within, or partly within, a city or incorporated town having more than 1,500 inhabitants; and the authority to provide in lieu thereof an inferior court for such precinct, or precincts, having jurisdiction of all civil cases where the amount in controversy shall not exceed $100, except in cases of libel, slander, assault and battery, and ejectment.
In section 104 of the Constitution it is declared:
"The Legislature shall not pass a special, private, or local law in any of the following cases [enumerating and specifying a number of instances where this veto applies, including subsection 21, *Page 394 reading as follows]: Increasing the jurisdiction and fees of justices of the peace or the fees of constables."
Chief Justice ANDERSON (State v. Spurlock, 159 Ala. 122,48 So. 849), says: "A justice of the peace is a constitutional officer, and is given by the terms of the Constitution certain civil jurisdiction; but the right to exercise criminal jurisdiction is of statutory creation. This the Legislature can give, and this the Legislature can withdraw when previously given. The present Constitution, like its predecessor, left the power to confer criminal jurisdiction on justices of the peace, but, unlike its predecessors, gives the Legislature a discretion as to justices of the peace, or inferior courts, in lieu of same, in cities and incorporated towns having more than 1,500 inhabitants. — Section 168, Const. 1901. The Legislature, recognizing its constitutional right to do so, has in several instances taken from justices of the peace all criminal jurisdiction, and has since the adoption of the present Constitution established inferior courts in lieu of justices of the peace in certain cities and towns with more than 1,500 inhabitants. Consequently the present Code was compiled, rewritten in part, and adopted at a time when we had what may be termed two separate and distinct classes of justices of the peace; one class with civil jurisdiction only, and the other with both civil and criminal jurisdiction. So, too, is it a matter of judicial knowledge that the acts previous to the present Constitution contained local laws conferring different jurisdiction and fees upon justices of the peace in the various counties of the state, thus in effect destroying all uniformity as to jurisdiction or compensation. Therefore the framers of the present Constitution, recognizing this condition, attempted to obviate such an inharmonious state of affairs by inserting in the Constitution of 1901 subdivision 21 of section 104, prohibiting the increase of the jurisdiction or fees of justices of the peace by any law."
Taking the historical view of this section, it will be noted that section 168 of the Constitution of 1901, conferring upon the Legislature discretion to abolish the office of justice of the peace in certain cities and incorporated towns having more than 1,500 inhabitants, was adopted instead of section 26, art. 6, of the Constitution of 1875, which required the election of not exceeding two justices of the peace in each precinct of every county in the state. The language conferring jurisdiction is identical in both sections (section 168, Const. 1901; section 26, art. 6, Const. *Page 395 1875), to wit: "Shall have jurisdiction in all civil cases, where the amount in controversy does not exceed $100.00, except in cases of libel, slander, assault, and battery and ejectment."
This limitation of jurisdiction was considered in Alford v.Hicks, 142 Ala. 355, 38 So. 752, where Mr. Justice Tyson said: "Whether section 168 is a grant of power to the Legislature to establish the inferior courts mentioned in it is not necessary here to be decided. But it is entirely clear that it is a limitation upon the power of the Legislature to confer upon these courts, when established, jurisdiction in excess of $100, and an act, if passed, conferring jurisdiction for a greater sum, would be unconstitutional."
The view announced in the Alford Case is confirmed by a reference to the Journal of the Constitutional Convention of 1901, p. 810. Mr. Smith, as chairman of the judiciary committee, reported as follows: "The article reported makes no change in the office or jurisdiction of justices of the peace, but provides that the Legislature may create inferior courts, with the jurisdiction of a justice of the peace, for any precinct or precincts lying within any incorporated town or city having a population of more than 2,500 inhabitants, to supersede and take the place of all justices of the peace in such precincts, whenever such courts may be deemed by the General Assembly to be wise."
In the debate on this report Mr. Smith said: "So far as the section is concerned, it was molded largely to suit * * * the varying conditions of the several counties and municipalities in the state. As the gentleman will notice, it makes the justice of the peace a constitutional officer in the counties, but not in cities and towns having 2,500 inhabitants or more. In cities and towns having 2,500 inhabitants or more. In cities and towns of that size the Legislature has the right, though it is not made compulsory, to create an inferior court to exercise the jurisdiction that justices of the peace would otherwise exercise in such cities or towns as the Legislature may create these inferior courts, and abolish the office of justice of the peace."
On pages 1131-1138 of this Journal are shown the several proposed amendments to section 29, one of which, offered by Mr. Williams, of Marengo, was to the effect that "the inferior courts herein provided for shall have such jurisdiction as may be conferred on them by law," and a substitute, offered by Mr. Cobb, was to the effect that such inferior courts should have jurisdiction *Page 396 of the justices of the peace, except that in civil cases they should have jurisdiction where the amount involved did not exceed $250. On motion of Mr. Graham, of Montgomery, the proposed amendment and substitute were tabled. An amendment, offered by Mr. Reese, of Dallas, to section 29, to the effect that "the jurisdiction of such courts shall extend over and include all precincts next contiguous thereto," was rejected by the Convention. — Journal, Const. Conv. Ala. 1901, p. 1138. Only one amendment was adopted, that by Judge de Graffenried, making the limit, as to population, of cities and incorporated towns where such inferior courts may be established in lieu of justices of the peace 1,500, instead of 2,500, as first reported by the judiciary committee. In the debate in the Convention, immediately preceding the adoption of section 29 of the report of the judiciary committee (now section 168 of the Constitution), Mr. Williams said, in support of his amendment: "The section, as reported by the committee, provides for the abolition of the courts of justices of the peace and the establishment of an inferior court in the precinct wherever the court of the justice of the peace may be abolished. But it goes further, and limits the jurisdiction in all civil cases in these inferior courts by saying that it shall not exceed $100, and except in cases of libel, slander, assault and battery, and ejectment. My amendment only goes to this extent: That whenever that justice court is abolished, and the inferior court established, the court so established shall have such jurisdiction as may be conferred upon it by law. * * * What is the object of giving to that inferior court only the jurisdiction that the justices of the peace had?"
To the question by Mr. Walker (Madison): "Do you mean under your amendment to leave it so that the Legislature can confer upon such inferior court the jurisdiction of the circuit or chancery court?" Mr. Williams replied: "I think they might have more extended jurisdiction than justices of the peace."
Mr. Cobb, of Macon, said of his substitute: "I am not in favor of creating these courts with the general jurisdiction which this amendment would give them, but I do believe that if we provide for the creation of these courts at all, they ought to have some jurisdiction above that conferred upon a justice of the peace."
Mr. Vaughn, discussing the substitution, declared: "As to the jurisdiction — we need the justice of the peace in the country, *Page 397 and we need courts of that same jurisdiction in town. * * * I think that the jurisdiction ought not to be increased, as provided in some of the other amendments, to $250."
In this debate, speaking of the territorial jurisdiction to be exercised by such inferior courts established in lieu of justices of the peace, or, rather, of the venue in which that jurisdiction is to be exercised, Mr. McDonald inquired: "Is it the purpose of the majority to allow the Legislature to provide for inferior courts in each precinct of a town such as described in the section?
"Mr. Smith: No sir.
"Mr. McDonald: That is the phraseology; just read it.
"Mr. Smith (Mobile): It is not the purpose, nor is it so expressed, in my opinion."
Upon a vote being taken, the motion to table the minority report prevailed.
Mr. Graham, moving to lay on the table the amendment and the several substitutes therefor, explained the purpose of the judiciary committee in rejecting the amendment as follows: "It should not be the intention of this Convention to create courts without number, conferring upon them jurisdiction entirely out of proportion to their merits. The whole purpose was to establish in cities and towns a court which would take the place of the number of justices of the peace who were carrying on the business of the administration of justice. * * * I move to lay the substitute, the amendment of the gentleman from Macon, and the amendment of the gentleman from Dallas, upon the table."
The rejection by the Constitutional Convention of said several proposed amendments and substitutes, and the adoption of section 168 of the Constitution, was a denial, by the Convention, of the proposition to extend the civil jurisdiction of justices of the peace, or of such inferior courts as might be created in lieu thereof, as to the amount in controversy and as to the subject-matter, theretofore conferred upon and exercised by justices of the peace.
It is further clear that by the adoption of section 168 of the Constitution, the intention of the Convention was that, where one or more precincts lie, within, or partly within, a city or an incorporated town having more than 1,500 inhabitants, the Legislature might provide, in lieu of the justices of the peace of said precinct, or precincts, an inferior court with the same jurisdiction as that *Page 398 conferred on the justices of the peace whose offices are abolished by the Legislature. That is to say that the section of the Constitution is a limitation upon the power of the Legislature to abolish the office of justices of the peace, as therein indicated, unless an inferior court is crated in lieu thereof, in strict conformity to section 168.
(1) The act now certified by the Court of Appeals for construction (that of September 23, 1915), attempting to abolish the office of justice of the peace in precinct No. 36 in Dallas county, and "to create and establish an inferior court of Dallas county, Ala., in lieu of all justices of the peace in precinct 36 in said county," offends section 168 of the Constitution, in attempting to confer on such inferior court a jurisdiction in excess of that of the justices of the peace whose offices are sought to be abolished. This excess jurisdiction was sought to be made coextensive with that of the circuit court in cases of libel, slander, and assault and battery, jurisdiction of which subject-matters section 168 specifically denies to such inferior courts, and section 143 of the Constitution invests in the circuit court. — Larkin v.Simmons, 155 Ala. 273-277, 46 So. 451.
If it be insisted that such inferior court of Dallas county sought to be established by this act was one of general jurisdiction, and a court of law inferior to the Supreme Court, within the provisions of section 139 of the Constitution, it is sufficient to say that the title, as well as the body of the act, shows that such was not the legislative intent in its enactmnet.
We do not mean to hold that there cannot be created inferior courts in cities or incorporated towns having more than 1,500 inhabitants, with jurisdiction in excess of that of justices of the peace, but we do hold that any attempt to dispense with the offices of justice of the peace, except by the creation in lieu thereof of an inferior court in strict compliance with section 168 of the Constitution, is void.
On the question of the separability of unconstitutional portions of an act, Mr. Justice McClellan, in State, ex rel.Crumpton v. Montgomery, etc., 177 Ala. 212, 241, 59 So. 294,302, pertinently remarked: "An enactment may be valid in part and invalid in part, and the general rule is that, if the valid and invalid parts are independent of each other, separable, and the valid competent to stand without the invalid, leaving an enactment *Page 399 sensible and capable of being executed, the valid parts will survive and the invalid will be stricken. — Powell v. State,69 Ala. 10; Doe, ex dem. Davis v. Minge, 56 Ala. 121; State v.Davis, 130, Ala. 148, 30 So. 344, 89 Am. St. Rep. 23; 36 Cyc. pp. 976-978. It is also * * * said, in the nature of limitation of the rule stated, that the whole statute will be stricken if the valid and invalid parts are so connected and interdependent in subject-matter, meaning, and purpose that it cannot be presumed that the Legislature would have passed the one without the other, or where the striking of the invalid would cause results not contemplated or intended by the lawmakers, or where that invalid is the consideration or inducement of the whole act, or where the valid parts are ineffective and unenforceable in themselves, according to the legislative intent."
Another leading case on this subject is that of Vines v.State, 67 Ala. 73, where Chief Justice BRICKELL declared the rule, when the unconstitutional parts of the statute may or may not be separated from the rest of the act, to be: "A part, or a section, of a statute may offend the Constitution, state or national, and if there are other parts, or sections, separable from, not dependent upon it, capable of full execution without it, their validity is not affected. — Ex parte Pollard,40 Ala. 77. But when the parts of a statute are so materially connected and dependent as to justify the belief that the Legislature intended them as a whole, and there is an absence of good reason for the belief that the Legislature intended, if a part was incapable of taking effect, the residue should be preserved, the whole statute must fail."
(2) We do not think that so much of the act in question as is repugnant to section 168 of the Constitution can be stricken therefrom and the remainder upheld, and it is evident, from an inspection of the title and of the subject-matter of the body of the act, that the Legislature would not have created this inferior court of Dallas county unless it thought and intended that this court was in lieu of the offices of justices of the peace, and that it was the further legislative intent that the offices of justices of the peace in precinct No. 36, Dallas county, were abolished by the same act.
The respective opinions will be certified to the Court of Appeals as answer to the inquiry as to the constitutionality of the act in question. *Page 400
SAYRE, J., concurs. ANDERSON, C.J., and MCCLELLAN, MAYFIELD, and SOMERVILLE, JJ., concur in the conclusion. GARDNER, J., dissents.