That it is the solemn duty of this court to uphold rather than strike down the act in question, unless the same plainly transgresses our organic law, is, of course, fully appreciated and so expressed in the majority opinion.
The opinion also fully recognizes the fundamental principle that a statute may be constitutional in one part and unconstitutional in another, and that if the invalid part is severable from the rest, the portion which is constitutional may stand, while that which is unconstitutional is stricken out and rejected. *Page 406
"It does not matter that the objectionable and valid parts of the statute are in the same section of the act. If they are perfectly distinct and separable, and are not dependent the one on the other, the courts will permit the one part to stand, though the other may be expunged as unconstitutional, provided the effect can thus be given to the legislative intent." — Powell v. State, 69 Ala. 10.
"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 sensible and capable of being executed, the valid parts will survive and the invalid will be stricken." — State, ex rel. Crumpton v.Montgomery, 177 Ala. 212, 59 So. 294.
It is quite clear that the legislative purpose was to establish an inferior court in lieu of the justice of the peace courts for precinct 36 in Dallas county, in all respects as authorized by section 168 of our Constitution. As to this there seems to be no division of opinion. In carrying out this intention the legislative department overstepped the bounds, to some extent, and gave to the court to be established a jurisdiction slightly in excess of that authorized by the above provision of our Constitution. It is quite clear, however, that the intention was to create an inferior court in lieu of the justice of the peace courts of said precinct. This was the real substance of the bill. Conceding, therefore, that the attempt to give the proposed court some slight additional jurisdiction was abortive, and that such excessive jurisdiction must be declared invalid, yet I am unable to see any sound reason why the above-stated rule as to severability of the valid from the invalid portion of the act is not entirely applicable. Clearly this excessive jurisdiction was not at all considered an essential part of the enactment, and may be stricken without in the least affecting the real legislative intent or the real substance of the act, but leaving the enactment entirely sensible and capable of execution.
To my mind, none of the opinions rendered responds to this feature of the case. Justice THOMAS and Chief Justice ANDERSON make reference to the principle of severability, with the conclusion that it cannot be here applied, for the sole reason, it seems, that the legislative intent was clear that the justice of the peace courts in precinct 36, Dallas county, should be abolished, and an inferior court established in lieu thereof. I agree thoroughly *Page 407 with the statement that such was clearly the legislative intent and, thus far, am in entire accord with that portion of those opinions. I am unable, however, to see how such conclusion is any reason for striking down the act, being of the view, to the contrary, that it is a strong reason for upholding same. From my viewpoint, it is our duty to uphold the act in this, its principal feature, which would result in our holding the act entirely valid as one abolishing the justice of the peace courts in precinct 36 and establishing, in lieu thereof, this inferior court, with its proper jurisdiction. The invalid portion of the act is that which adds onto its jurisdiction in excess of that permitted under the provisions of section 168 of the Constitution; and it is this excessive jurisdiction only which, in my opinion, it is the duty of this court to strike down as invalid, leaving untouched the clear substance of the act, which abolishes the justice of the peace courts in that precinct and creates an inferior court to take their place.
What is here said in regard to the valid parts of an act being severable from the invalid portion applies, of course, with equal force to the published notice required under our Constitution as to local laws.
In the case of Alford v. Hicks, 142 Ala. 355, 38 So. 752, and Larkin v. Simmons, 155 Ala. 273, 46 So. 451, the question of severability here discussed was not involved, and of course no reference to this rule is to be found in either of the opinions. These adjudications, therefore, are not applicable to the situation here presented, and cannot be said to militate against the conclusion I have here reached.
I, therefore, entertain the opinion that, under the above-stated principle, it is the duty of this court to strike down the invalid part of the act — that is, the excessive jurisdiction — and leave unaffected the valid part, which establishes this inferior court in lieu of the justice of the peace courts for said precinct, and thus carry out the legislative intent as plainly expressed in the body of the act, which provides that if any clause or provision thereof be declared unconstitutional, the remaining portion of the act shall remain unaffected thereby. Such legislative declaration was accorded some effect in State, ex rel. Crumpton v.Montgomery, supra, and is recognized in Justice MCCLELLAN'S concurring opinion.
Entertaining, as I do, these views, briefly stated, I cannot concur with the majority of the court, and therefore respectfully dissent. *Page 408
DECISION BY COURT OF APPEALS IN ACCORDANCE WITH RESPONSE OF SUPREME COURT.