Cook v. Burke

SAYRE, J. This appeal brings under review the judgment of the circuit court of Cullman county by which a peremptory writ of mandamus was awarded against appellant, as treasurer of Cullman county, commanding him.to register certain warrants as claims against the — 157 — general fund of the county. The warrants had been issued by the board of county commissioners to provide for the payment of fees claimed by appellee as judge of the county court of Cullman under the provisions of an act approved March 1/1901, entitled “An act to confer additional jurisdiction upon the county court of Cull-man county, Alabama, and to regulate the proceedings therein.” The proceeding for mandamus was so contrived and conducted as to raise two questions, viz.: (1) The constitutional enactment of the special statute to which the county court of Cullman owes its existence. —Acts Feb. 28, 1901; Local Acts 1900-01, p. 1189. (2) Appellee’s right to the fees as affected by section 150 of the Constitution. By section 11 of the act approved March 1, 1901 (Loc. Acts 1900-01, p. 1311), a public act of which the court takes judicial notice, it was provided that the judge of the county court of Cullman should receive a fee of $3 for each case disposed of in said court. This act, however, did not undertake to set up the court. It assumed that the court had already been established by the act of February 28, 1901, the act against the constitutional passage of which thé attack of this proceeding is directed. It is necessary to trace the legislative history of the county court Of Cullman. By general law prior to 1880 a county court, of which thé judge of the probate court was ex officio the judge, ivas provided in each county for the trial of misdemeanors. — Code 1876, § 718 et seq! At the session of the Legislature in 1880-81, an :act whs passed to establish an inferior court for Cullman county (Acts 1880-81, p. 211) superseding and supplanting the county court. At the session of 1890-'91'(Laws 1890-91), p. 262), the áct óf 1880-81 was repealed. It may not have been so intended and understood, but one ef — 158 — feet of this last act was to leave the county of Cullman without a county court.—Larkin v. Simmons, 155 Ala. 273, 46 South. 451. Necessarily it also repealed those sections of the Code of 1886 which related exclusively to the county court, so far as concerned their operation in Cullman county. These sections were, carried forward into the Code of 1896, hut were not thereby revived as to Cullman county.—Maxwell v. State, 89 Ala. 150, 7 South. 824. By an act passed in 1899 (Local Acts, 1898-99, p. 1625), sections 4593, 4594, 4595, 4596, 4598, and 4599 of the Code of 1896, in so far as they applied and related to the county of Cullman, were specifically repealed, the act providing that all cases then pending in the county court should be transferred to the city court of Cullman. This act may have been a work of supererogation, but it emphasized the fact that thereafter there was no county court in Cullman county. The sections of the Code of 1896, repealed in terms by the act of 1899 just referred to (brought into the Code of 1907 as section 6696 et seq.), constituted an essential part of the general law conferring upon judges of probate the power and authority of judges of the county court. At the session of 1900-01, House Bill 894 was. introduced, its title being, “To repeal an act entitled an act to repeal sections 4593, 4594, 4595, 4596, 4598 and 4599 of the Code in so far as they relate and apply to the county of Cullman.” — House Journal, p. 711. On its third reading this bill was amended by a substitute with title as follows: “To repeal an act entitled an act to repeal sections 4593, 4594, 4595, 4596, 4598 and 4599 as to Cullman county.” The body of the act, which constitutes the authority for the county court of Cullman, as at present organized, fulfills the promise of the title, repeals the repealing act of 1889, and re-enacts the enu — 159 — merated sections of the Court at length. — Loc. Acts 1900-01, p. 1489. 1. It is contended that this legislative history shows a violation of the Constitution, in that the bill was not read on three different days, but this is only another way of stating the main contention against the act which is that the bill as amended on its third reading was a radical and unwarrantable departure from the original bill; that the bill, in the language of the Constitution (section 61), was so altered or amended on its passage as to change its original purpose. In our opinion this objection to the statute cannot be sustained. It may be conceded for the argument that if a bill, entitled and framed as this was with the purpose of reviving a law which has been repealed, takes the form of law by legislative adoption, it accomplishes nothing for the reason that the subject expressed in the title is narrower than the proximate purpose of the bill, and hence is not clearly expressed, and because it would run counter to that inhibition of the Constitution which commands that “no law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only; but so much thereof as is revived, amended, extended, or conferred, shall be re-enacted and published at length.” — Const. § 45. As the face of the act under consideration, in its final shape, clearly shows, these objections were obviated by the substituted or amendatory bill in which the sections intended to be reenacted were set out at length, the title also being amended so as to show the subject of the enactment more precisely. In its original shape the bill did not clearly express its purpose to revive the sections. That purpose was permitted to rest in inference. However, unless we would attribute to the Legislature a general lack of understanding as well as inattention to the requirement of — 160 — the Constitution, there was but one purpose to be inferred — the purpose to re-enact the law which -had theretofore been repealed by the original repealing act. The rule of the common law was that, when a statute or a common-law rule was repealed and afterwards the repealing act was itself repealed by a later statute, the earlier law was thereby revived. This rule rested upon the presumed intent of the Legislature in passing the later repealing statute. — 26 Am. & Eng. Encyc. p. 760. That such intent could not be carried into effect by a bill so framed by reason of a constitutional rule, of enactment which had been interposed does not change the fact that the text of the bill in its original form evidenced but one purpose; nor did the changes made in the title and body of the bill change its purpose, but only the manner of its expression. The Legislature, when it heard this bill read a first and second time in its original language, could have had the conception of but one rational purpose, the purpose which had clear expression in the bill as finally amended and passed. From first to last there was no reason for a misapprehension of the purpose of the bill, so that the amendment/ which cured the defective expression of the bill and gave effect to its only inferable purpose, agreeably in all other respects to the requirements of the Constitu--' tion, Avas itself free of offense against the letter or spirit of that provision Avhich Inhibited a change-'of purpose at that stage of the enactment.—Stein v. Leeper, 78 Ala. 517. ; 2. Thus far Ace have considered that objection- to the; act establishing the county court of Cullman 'which- this' court declined to consider, because' not raised on; the record, in the case of State ex rel. Vandiver v. Burke, 175 Ala. 561, 57 South. 870. In that case, looking to the previous constitution of county courts and the place — 161 — long held by them in the judicial history of the state, considerations which the makers of the Constitution had in mind, we held that, while those courts which had been established for the trial of misdemeanors under the presidency of the judges of probate were courts of record for other purposes, they were not courts of record within the meaning of section 154 of the Constitution, which requires judges of courts of record, except judges of probate courts, to be learned in the law. There is no occasion for a repetition of the argument. On identical considerations we now hold that judges of probate presiding in county courts for the trial of misdemeanors are not judges of courts of record within the meaning of section 150 of the Constitution, which provides that judges of “courts of record, except probate courts, shall, at stated times receive for their services a compensation which shall not be diminished during their official terms; they shall receive no fees or perquisites.” The judgment of the circuit court was in- accord with the views now, and heretofore expressed on this subject. It will be affirmed. Affirmed. All the Justices concur, except Dowdell, C. J., not sitting.