I concur in the conclusion, reached by the majority of this court and all the members of the Court of Appeals, that the act in question is void because it violates one or *Page 403 more express provisions of our Constitution. I at first thought that I could merely concur in the conclusion; but as there is such a difference of opinion among the Justices, and most all of them have expressed their views, and I am requested by some of the Justices to write to the question, I here give expression to my individual views.
The views of Judge BROWN, of the court of Appeals, come nearer meeting my own than those of either of the other Justices and Judges writing. It is only as to the probable sufficiency of the notice that I disagree with Judge BROWN. I also noncur in the view expressed by Chief Justice ANDERSON, that the attempt to confer territorial jurisdiction on the court in question in excess of the precincts as for which the offices of justices of the peace were abolished rendered the act in question void. I know of no provision of the Constitution which prohibits or inhibits such territorial jurisdiction of such courts in lieu of justices of the peace. An inferior court, created in lieu of justice of the peace courts, must have the same jurisdiction — no more and no less — as that exercised by the justices of the peace whose offices are abolished. — Alford v. Hicks, 142 Ala. 355, 38 So. 752.
The justices of the peace whose offices were abolished had jurisdiction throughout the county, civil and criminal. This being true, why cannot this court, created in lieu thereof, have the same jurisdiction ? Indeed, must it not necessarily have such jurisdiction, to meet the rule of Alford v. Hicks,supra ?
The Constitution provides that the jurisdiction of justices of the peace must be uniform throughout the state, county, and precinct; that is, that it must be fixed by general, and not by local, statutes. — Const. § 104, subd. 21. The general statutes on the subject are as follows: As to civil jurisdiction, section 4641 of the Code provides: "Justices of the peace have original jurisdiction within their respective counties, to be exercised as provided by law," etc.
As to criminal jurisdiction, section 6733 of the Code provides: "Justices of the peace have, in their respective counties, concurrently with the county courts, jurisdiction of the following offenses [enumerating them]."
There are, of course, venue statutes which prevent defendants from being sued outside of their precincts, if they desire to avail themselves of the rights conferred thereby; but such statutes do *Page 404 not curtail or diminish the jurisdiction of the court, unless pleaded judgments against a defendant, outside of his precinct, are as valid as those against him in his own precinct. This may be likened to the jurisdiction of a circuit judge, which is coextensive with the circuit, but a defendant sued without the county of his residence may plead the fact in abatement, in most cases, because of the venue statutes.
Jurisdiction and venue are often thoughtlessly confused; but of course everybody knows, when his attention is called to it, that they are very different things. The terms are never more confused than in relation to the jurisdiction of justices of the peace; in fact, they are so often confused that it may be said to be common to speak of their jurisdiction being limited to their respective precincts. This is largely due to the fact that the law does provide that two justices of the peace shall be elected in each precinct; but, when so elected, both the Constitution and the statutes contemplate that their jurisdiction is coextensive with the county.
In my judgment, the most fatal defect, and the most apparent defect, in the act and bill in question, is well pointed out by Judge BROWN in his opinion; that is, that the attempted enactment is duplex both in its title and in its body. While the opinions of the other Justices and Judges do not ascribe its invalidity to this difficulty, the resultant of all the opinions is proof of this infirmity. Some of the writers are of the opinion that the bill and act would be valid, as creating a law and equity court, if the Legislature had not also attempted to create a court in lieu of justice of the peace courts. Others are of the opinion that the bill and act is good, because the provisions touching the law and equity court can be eliminated as surplusage, leaving a good enactment to create a court in lieu of justice of the peace courts. But all agree that these two courts are separate and distinct entities, and are incompatible; that is, that one court cannot be created which can discharge the functions and purposes of both. All agree — and this is plain even to the layman — that the Legislature attempted to amalgamate these two courts into one. No one can read the title or the bill without reaching this conclusion. The Legislature could without question, by the passage of two bills, have accomplished what was clearly intended by this one; it could not possibly draft or pass one bill which could achieve the desired or intended results. It is therefore beyond question, to my mind, *Page 405 that the body of this bill deals with two distinct and independent subjects and entities — a law and equity court (or county court, as it is often called), and an inferior court in lieu of the justice of the peace courts. This is exactly what section 45 of the Constitution expressly says that the Legislature shall not do. See this section of the Constitution, and some of the hundreds of cases cited in the annotations thereto.
It is very true that the bill was professedly to create but one court; but it is equally true, and equally as plain, that it dealt with two independent subjects, which were wholly incompatible under our Constitution. The clear and unmistakable intent of the Legislature, in the passage of this bill, may be expressed as follows: We desire a law and equity court, with jurisdiction not wholly or fully concurrent with that of the circuit court, chancery court, and our city court of Selma, and also an inferior court in lieu of the justice of the peace courts, in the city of Selma, but, instead of creating two courts, by separate bills, we will accomplish the same result by this one bill, creating one court only, and giving it the combined jurisdiction which the two courts would have separately had. The trouble with the whole matter is that section 45 of the Constitution says: "Each law shall contain but one subject, which shall be clearly expressed in the title."
Here, it must be conceded by all, the proposed law contains two subjects, a law and equity, or county, court, and an inferior court in lieu of justice of the peace courts. Both subjects are equally clearly expressed, both in the title and in the body of the act. Neither of the two subjects can be treated as surplusage; the two, as all agree, are incompatible, and cannot be amalgamated.
Justice THOMAS concurs in what I have heretofore said, as to the act's offending section 45 of the Constitution.