State ex rel. Winter v. Sayre , 118 Ala. 1 ( 1897 )

BRICKELL, C. J.

This was an information in the nature of a quo warranto, in which the appellant was relator, and the appellee was respondent, to test and determine the rival claims of the respective parties to the office of judge of the City Court of Montgomery. The material facts are undisputed. Thomas M. Arrington, by the nomination of the Governor, and the selection of the Senate, at the regular session of the General Assembly of 1892-93, was appointed the judge of the court, for the prescribed term of six years, and until the close of the General Assembly, at Avhich his successor should be appointed and confirmed. He was duly qualified, entered upon and continued in the exercise of the powers and duties of the office until the first day of October, 1895, when he resigned. Upon his resignation, the Governor appointed William S. Thorington, as 'his successor Avho qualified and remained in office until he resigned on the first day of February, 1896, and the relator was by the Governor appointed his successor, Avas duly commissioned and qualified, continuing in office until the close of the regular session of the General Assembly of 1896-97. During the session, the Governor nominated the respondent and tAvo others to the Senate, for the selection and appointment of one to the office of judge of the court. The Senate selected and appointed the respondent, and on the close of the session, lie was commissioned and qualified, and entered into the office, assuming and exercising its powers and duties. The circuit court rendered judgment against the relator, declaring that he Avas not entitled to the office, sustaining the Aralidity of the appointment and of the consequent right of the respondent; and it is from this judgment the appeal is taken.

Tavo questions are involved — the first is, Avliether by force of the seventeenth section of the sixth article of the Constitution, the appointment of the relator was for the unexpired term of Judge Arrington, continuing until the close of the session of the General Assembly of 1898-99, and until a successor was appointed and qualified. The remaining question involves the validity of the clause of the act approA’ud February 13, 1879, (Pamph. Acts, 1878-79, pp. 418-19), prescribing the term of office of the judge of tlie court, and the mode of filling the office, AAdiich, in the event of a A-acancy occurring, confers on the GoA'ernor the power to fill it by .an appointment continuing until the close of the next session of the General Assembly.

The seventeenth section of the sixth article of the Constitution reads: “Vacancies in the office of any of the judges or chancellors of this State shall be filled by appointment by the Governor, and such appointee shall hold his office for the unexpired term, and until his successor is. elected or appointed and qualified.” The article is entitled, “Judicial Department,” and is devotéd principally to the véstiríg of the judicial- power of the State; and in all former' Constitutions a corresponding article bearing the same title, has' been' devoted to the same purpose. The first section of the article rests the judicial poiver “in the Senate sitting as a Court of Impeachment, a Supreme Court, Circuit-Courts, Chancery Courts, Courts of Probate, such inferior courts of law and equity, to consist of not more than five members, as the General Assembly may from time to time establish, and such persons as may be by law invested with powers of a judicial nature.” The section is the counterpart of the same section of the same article of the Constitution of 1868, the immediate predecessor of the present Constitution, and varies from the corresponding section of the like article óf the preceding Constitution — the variance is, however, rather of form than in matter of substance. The original Constitution of 1819, and its successors of 186.1 and 1865, vested the judicial' power “in one Supreme Court, Circuit Courts to be held in each county in the State, and such inferior courts of law and equity, to consist of not more than five members, as the General Assembly may from time to time direct, ordain and establish.” Each declared the power of the General Assembly to establish courts of' chancery, and to establish in each county a Court of Probate, and contained provisions by which the Senate was constituted the sole tribunal for the trial of all impeachments of civil officers. If we omit the words, “and such persons as may be by law invested with powers of a judicial nature,” the section in its present form is simply expressive in a single clause or sentence, of that which was manifested by the several sections of the article of former constitutions creating the judicial department and vesting judicial powers, taken in connection with the sections relating'to impeachments. When these words," “and such, persons as may be by law invested with powers of a judicial nature,” are read and interpreted in the light of prior legislative and judicial history, it is apparent they were introduced into the Constitution, and properly introduced in the connection in which they are found, from an abundance of caution. Until the decision in Gaines v. Harvin, 19 Ala. 491, it was-a vexed question, whether the General Assembly could confer power essentially of a judicial nature on other than judicial officers — the judges of the courts referred to in the Constitution, or the judges of inferior courts of legislative creation. After elaborate argument, and deliberate, mature consideration, in the case referred to, it was decided, that it was within legislative competency to confer such power on mere ministerial or executive officers. To avoid a recurrence of this question; to j)lace legislative power in this respect, beyond the pale of controversy, these words were introduced into the Constitution. — Ex parte Roundtree, 51 Ala. 42.

In the structure of the judicial system of the State, in the creation of judicial tribunals, and in the division and distribution of judicial power, there has been but little of change in the several constitutions of the State. All have provided for a Supreme Court, defining its jurisdiction and powers, as they are now defined, with the exception of the grant to it by the present Constitution of original jurisdiction of the impeachment of particular officers. All have provided for Circuit Courts, for Courts of Chancery, for Courts of Probate, and for the election or appointment of justices of the peace; and have defined with more or less of precision the jurisdiction each court was to exercise, and the extent of the jurisdiction justices of the peace derived from the Constitution itself. The system is in itself and of itself complete; and though there has been a grant or reservation to the General Assembly of power to establish inferior courts of law and equity, there has not been any part, or any fraction, or fragment of the judicial power, left in abeyance, awaiting the happening of any future event, or the exercise of future legislative power, to vitalize or quicken it into activity. If the General Assembly never exercised the power to establish inferior courts with which it was clothed, and its exercise is purely matter of legislative discretion, the whole element of sovereignty known as the judicial power would exist, confided to tribunals which may properly be said to be of constitutional creation. — Perkins v. Corbin, 45 Ala. 118.

Tlie changes in the structure of the system — the more important changes — wrought by constitutional amendment, have been in the tenure of judges, and the mode of their election or appointment. By the original Constitution of 1819, all judges held office during good behavior, and were elected by the joint vote of the two houses of the General Assembly. By an amendment adopted in January, 1830, the tenure or term of office was changed to six years, but there was no change of the mode of election until January, 1850, when an amendment Avas adopted transferring the election of judges of the Circuit Courts to the qualified electors of the circuits, respectively; and the election of judges of the Courts of Probate, and other inferior courts, to the qualified electors of the counties, cities, or districts, for which such courts Avere respectively established. The judges of the Supreme Court and chancellors remained elective by the General Assembly, until the formation and adoption of the Constitution of 1868. By that Constitution, the tenure or term of all judges, was fixed at six years, and judges of the Supreme Court were elective by the qualified electors of the State at large, chancellors by the qualified electors of the division, judges of the circuit court by the qualified electors of the circuit, judges of probate by the qualified electors of the county, and judges of the inferior courts, by the qualified electors of the county, city, tOAvn, or district, for Avhich the court was established. The present Constitution prescribes six years as the term of office of the chief justice and associate justices of the Supreme Court, circuit judges, chancellors, and probate judges; and declares the right of these judges to hold office for the full term prescribed shall not be affected by any change of any circuit, division, or county, nor in the mode or time of election. And these judges are elected by the qualified electors of the State, of the circuits, chancery divisions, and counties, for AAdiicli the courts are established. Departing from the theory and policy of former constitutions, the mode of electing or appointing, or the term of office of judges of inferior courts, is not prescribed. And emphasizing the change of theory and policy, it is declared: “The judges of such inferior courts of laws and equity as may be by law established, shall be elected or appointed in such mode as the General Assembly may prescribe.” And in this connection, it may be observed, former Constitutions had prescribed the mode of electing or appointing, and the term of office, of clerks of inferior courts, never committing the appointment to the judge of the court, while in further manifestation of the radical change of theory and policy in reference to these courts, the appointment of clerk is now committed to the judge, and the appointment endures during the term of the judge by whom it is made.

Granting to the General Assembly this unlimited power to prescribe the mode of election or appointment of judges of inferior courts, by necessary implication, the Constitution confers every particular power necessary to render the grant effectual. When an election or an appointment is prescribed as the mode of filling the office, the power is not exhausted — the term of office may be prescribed, and whatever else may be deemed necessary to subordinate the office and the court to legislative control. Without derogating from, or lessening the force of, the general grant, the Constitution could not have descended to an enumeration of particular powers the grant involved. And if it had descended to such an enumeration, the particular powers not enumerated, would have resided in the General Assembly, if not confided expressly to some other department by the government. In all its elements, under the Constitution, an inferior court is of legislative creation and institution; and it is only as of such creation and institution, there is constitutional recognition of it; and as this is its essential character, it is distinguished and distinguishable from all other courts or tribunals to which the Constitution refers.

As we have said, the intrinsic body of the judicial power is lodged, by the Constitution in the courts of its own creation and. protection. The appellate jurisdiction, and the powers incident deemed necessary to render it effectual,, is granted to the Supreme Court. The circuit court has original jurisdiction in all matters civil and criminal, not otherwise excepted, but in civil cases only when the matter or sum in controversy exceeds fifty dollars. Courts of chancery are established, Avithout any special definition or description of the jurisdiction they were to exercise, and such definition or description was not necessary. Such courts were known to the common law, had been instituted here in the earliest days of organized government, exercising the jurisdiction pertaining to such courts in England, whence all our institutions were derived, so far as adapted to our condition, institutions and general jurisprudence. Courts of probate, though that particular designation Avas not given them by legislation until 1850, existed in each county prior to the formation of the original Constitution of 1819; and in that and all succeeding constitutions, the nature and character of the jurisdiction they were to exercise, and the purposes of their creation haAre been' expressed in the same general terms, “for the granting of letters testamentary and administration, and orphans’ business.” The original jurisdiction of these courts — of the courts of chancery, and of the courts of probate — essentially and exclusiArely civil, is excepted from the grant of original civil jurisdiction to the circuit courts. And it is the judges of these courts — the circuit courts, the courts of chancery, the courts of probate — who are protected against legislative invasion, by any change of circuit, or division, or of the county, or in the mode or time of election. These are permanent courts, necessary constituents of the judicial system the Constitution creates, and may be said to organize, when it is read and interpreted, as it must be read and interpreted, in the light of the laws and systems existing at its formation, which are not destroyed, but preserved, so far as not repugnant to or' inconsistent with its provisions. These courts statutes do not create, and Avhatever may be the scope of legislative power to regulate the exercise of the jurisdiction conferred upon them, or in the enlargement of their jurisdiction to meet varying conditions and necessities, statutes cannot destroy them. Inferior courts, whatever may be the title or designation given them, derive existence and vitality from legislative power; and the power that at will creates, may at Avill destroy. The inferior conrts existing at the formation of the original Constitution, known as county courts, Avere abolished by the act of the General Assembly, approved February 9, 1850, and their records and process transferred to the circuit courts of the respective counties. — Pamph. Acts, 1849-50, pp. 24-36. In the course of legislative history, quite a number of these courts have been created and destroyed or abolished at the will and discretion of the General Assembly. The city court of Selma Avas established by an act of the General Assembly, approved December 9, 1864, (Pamph. Acts, 1864, pp. 146-149), and was abolished. by an act approved December 11, 1869, and its records and process transferred to the Circuit Court of the county.— Pamph. Acts, 1869-70, pp. 6-8. The validity, extent and operation of the latter enactment, came before this court for consideration in Perkins v. Corbin, 45 Ala. 103; and after elaborate argument, the enactment was sustained, and its effect declared to be the abolition of the office of judge of the court, terminating all right of the incumbent to salary for the unexpired term. That AAdiich is now of the more importance, is the explicit affirmation by the court of the plenitude of legislative poAver in the creation and abolition of inferior courts, and the exposition of the distinction betAveen such courts and the permanent, continuing courts of the Constitution. This judicial determination of the nature and character of inferior courts — of their dependence upon and subordination to legislative power — was made less than five years before the formation and adoption of the present Constitution. The convention framing, and the people adopting the Constitution, Avere not ignorant of this judicial exposition; and if presumptions are indulged,' the presumption must be, that if they intended any change in the nature and character of these courts — to lessen their dependence upon and' subordination to the legislative power— the intention Avould have been clearly expressed. There is no expression of such intention in the Constitution. On the contrary, all that relates to the institution of such courts is expressed in the same words in which it Avas expressed in all former constitutions. The only change is, that the term of the office of the judge of such courts, or the mode of election or appointment to the office is not prescribed, but is committed, expressly committed, to the General Assembly. When a constitutional provision has received construction, and is substantially adopted, or carried into a succeeding Constitution, the courts apply the rule which prevails in reference to the substantial re-enactment of statutes — that it is the intention of the law-giver to adopt the construction the original statutes had received.

The object of all construction is to ascertain and effectuate the intention of the people in the adoption of the Constitution. The intention is collected from the words of the instrument, read and interpreted in the light of its history. The general rules or principles employed are well defined. A cardinal rule is, that the Constitution’ must be carefully examined in its entirety. As an entirety, complete and harmonious in all ics parts, or believed to be, it was framed by the convention of the representatives of the people. As an entirety, it was adopted by a single expression of the sovereign will of the people. There can be no fair or. just construction or interpretation, if it be limited to 1'articular words or phrases, or the words or phrases of particular clauses. The Avhole. must be considered to ascertain the sense and significance, in Avhich words or phrases are used in particular parts of clauses. — Cooley Const. Lim., 74. As has often been said, the Constitution is not the beginning of Iuav — originally it Avas made by a people and for a people, among whom the common Iuav prevailed, and avIio had statutes, judicial tribunals, a legislature, an executiAre, and all the agencies of gwernment knoivn to American institutions and jurisprudence. There can be, no just construction or interpretation, effectuating the intent of the people, which is not deduced, not only from the words, but, from the history of anj particular part or provision of the instrument. — Cooley Const. Lim. 74; People v. Angle, 109 N. Y. 568; Street v. City of Syracuse, 129 N. Y. 316; People v. Draper, 15 N. Y. 537; Ex parte Roundtree, 51 Ala. 42; Taylor v. Woods, 52 Ala. 474; Mayor v. Stonewall Ins. Co., 53 Ala. 570. Reading and construing succeeding constitutions in connection with the predecessors, Ave discover the changes they introduce— the ends or purposes it is proposed to accomplish, and the real meaning of words or phrases.

Keeping these principles and rules in view, further inquiry into the distinctive nature and characteristics of inferior courts, as they exist under the present Constitution, and as they existed under its predecessors, will aid materially in the solution of the immediate question for decision. The compensation of the judges of the county courts — the original of the inferior courts — was derived from fees, which the legislature could enlarge or diminish at pleasure. — Benford v. Gibson, 15 Ala. 521. The judge was invested with a dual capacity and jurisdiction — he was not only the judge of the County Court, but also of the Orphans’ Court— the designation, so long as the County Courts existed, of the Court of Probate of the Constitution. The judges of all other inferior courts have been, and are now, compensated by salaries; but the salaries were and are payable from the treasury of the county, for which, or a division, or district of which, the court may be established, and not from the treasury of the State. The judges of the permanent, continuing-courts of the Constitution — the judges of the Supreme Court, the chancellors, and the judges of the circuit courts — receive no fees or perquisites, they are compensated bv salaries, payable from the treasury of the State, which cannot be diminished during their official term. A fixed term of office, and compensation incapable of diminution during the term, is deemed essential to preserve the independence of the judiciary of the creation of the Constitution. A like measure of protection could not be extended to inferior courts of legislative creation, without derogating from legislative power, and rendering them constituents of the permanent judicial system of the State. Chancellors, at discretion, may hold courts for each other. The judges of the circuit courts may, and, when required by law, must interchange. Judges of inferior courts have never been authorized to exercise judicial functions except in the particular courts of which they are judges; and it may well be doubted whether it is" within legislative competency to confer such authority. Judges of the Supreme Court, of the circuit court, and chancellors, are prohibited, during the term for which they are elected, from holding any office (except judicial offices) of trust or profit, under this State, or the United States, or any other power; a prohibition not extended to judges of inferior courts. We need not pursue further inquiry into the nature and characteristics of inferior courts, and their absolute dependence on legislative power. for existence. Without a fixed term of office, without constitutional protection of their compensation, free from all prohibition to take other offices, the judges of the courts are separated and distinguished from the judges .of the courts of the Constitution, as plainly as if the separation and distinction had been expressed .in words directed to that purpose.

The Constitution of 1868 provided that 'Vacancies in the office of the circuit judge, judge of probate, or judge of any other inferior court established by laiv, shall be filled by the Governor; and the person appointed by him shall hold office until the. next election day appointed by law for election of judge, and until his successor shall have been elected and qualified.” The judges enumerated, it must be observed, had fixed terms of office, and an election by the qualified electors of the circuit, or of the county, or of the town, city or county, or district for which the court was established, was prescribed as the mode of .filling the office.- There Avas an omission to proiude a mode of filling vacancies occurring in the office of chancellor', and in the office of judge of this court, supplied by an act of the General Assembly, approved March 7, 1873, conferring on the Governor general poAver to fill by appointment vacancies occurring in judicial offices. — Pamph. Acts, 1872-73, p. 83.

The constitutional provision now in question,, is the successor — the substitute — for the corresponding provision of the Constitution of 1868; it relates to the same subject and has a like office to perform. The preceding provision related only to judges having a term of office, and a mode of election, prescribed by the Constitution. Then, as now, there Avas the frailty of the tenure of office of judge of an inferior court — then, as noAv, such courts were of legislative creation and subject to legislative destruction; but the mode of filling the office of judge, the Constitution prescribed;, it was not Avithin legislative power. Bead in the light of the legislative and judicial history of inferior courts; in connection with the corresponding provision of the preceding Constitution; and in connection with other sections and clauses of the article of -which it forms part, the provision in question cannot by any fair, just construction, be extended to every officer exercising judicial power, though he may bear the title of judge or chancellor. It relates to the judges and chancellors nominated in the Constitution, and by the Constitution invested with judicial power. The abstract force of the words, “any of the judges or chancellors of this State,” taken in the largest sense and significance of which they are capable, may comprehend judges of inferior courts, or any judicial officer taking place and authority from the laws of the State. Every public officer, judicial, ministerial, or executive, deriving place and authority from the Constitution or laws, is an officer of this State, and not of any other sovereignty or jurisdiction. If the mere abstract force of words be consulted, the intendant, or mayor, or recorder of municipal corporations, invested with a minimum of judicial power, the exercise of which is localized within narrow, defined territorial limits; or notaries public of the appointment of the Governor, authorized to exercise the jurisdiction of justices of the peace, may be said to be “judges of this State.” Yet, that would not meet and satisfy the popular, familiar meaning of the phrase or expression, nor would it accord with the structure or frame of the government. The Constitution and legislation create two classes of public offices and officers — offices and officers of the State, and county offices and officers. They are agencies and component parts of the government, marked and distinguished by the nature and extent of authority conferred, and the sphere of performance of official duty. — Ex parte Wiley, 54 Ala. 226. Deriving existence and authority from a common source, general words or phrases used in a statute or in a constitutional provision, if taken in the largest significance of which they admit, may comprehend each class. Whether each class is comprehended, or the one only, depends not so much on the generality, or abstract force of the words, but upon the relation in which the words are found, and the purposes of . the statute, or of the constitutional provision.

It is not matter of controversy, that the Constitution reserves, expressly reserves, to the Generál Assembly, the power to provide the mode in which judges of inferior courts shall be elected or appointed. It is not, it cannot be, matter of controversy, that in respect to these judges and these courts, there is a change, a departure from the theory and policy of all former constitutions, which, though the courts were subject to legislative destruction, yet removed from legislative power, the tenure or term of office, and the mode of electing or appointing the judge. Since the abolition of the county courts, there has not been a system of inferior courts having uniformity of jurisdiction throughout the State. Such courts have been established by the General Assembly, to meet the necessities and conditions of particular localities. These necessities and conditions vary, and as they varied, there has been an adaptation of the grant of jurisdiction to meet them. The present City Court of Mobile was originally established as the “Criminal Court for Mobile county,” and invested only with criminal jurisdiction, concurrent with that of the circuit court. — Nugent v. State, 18 Ala. 521. Since, there has been a change of its title, and an addition of civil jurisdiction concurrent with that of the circuit courts, except of actions involving titles to lands; but it has not been invested with equity jurisdiction. The city court of Montgomery, originally, was clothed with criminal and civil jurisdiction, (excepting from the civil jurisdiction, actions involving the title to lands), concurrent with that of the circuit court. Since, it has been invested with jurisdiction concurrent with that of the court of chancery. The jurisdiction of each court is localized and limited, to the particular county for which it is established. There is no necessity to refer to the variety of jurisdiction conferred on other inferior courts. The city court of Mobile and the city court of Montgomery illustrate that such courts are established, and jurisdiction conferred, to meet the varying necessities and conditions of particular localities. Can it be said, that uniformity in the mode of, appointment or election, or in the tenure or term of office of the judges of these courts, would meet the necessities and conditions of every locality for which the court may be established? However that may be, the Constitution speaks for itself — instead of prescribing inflexibly the tenure or term of office of the judges of these courts, or the mode of their election or appointment, it commits to legislative power, as it commits the character or extent of jurisdiction, the determination of the tenure or term of office of the judges, and the mode of election or appointment.

There are judges and chancellors, who may with propriety be denominated judges and chancellors of this ¡átate, having fixed terms of office, the mode of election to which the Constitution prescribes, and to whom a' measure of protection, adapted to the nature of their respective courts, against legislative invasion or interference, the Constitution extends. Elective by a vote of the people, at the same time, there is uniformity in the duration of their official term; a uniformity first introduced by the Constitution of 1868, and preserved by the present Constitution. Naturally and logically, it is to these judges and chancellors the constitutional provision refers. By construction, there cannot be an extension of it to judges of inferior courts. The extension would be a limitation upon, and in derogation of, the plenary power of the General Assembly, to prescribe the mode of election or appointment, and the tenure or term of office, of these judges. The office is now, as it has been at all times, of statutory creation; the mode of filling it and the duration of the term now lie exclusively in legislative discretion. The power to create, accompanied Avith the express power to provide the mode of filling and the tenure or term of office, involves the poAver to provide the mode of filling vacancies occurring before the lapse, of the appointed term. The conclusion is, that reading and interpreting in its entirety, the article of the Constitution of which the section in question forms part, it does not invest the Governor Avith poAver by appointment, to fill vacancies occurring in the office of judge of an inferior court. As to the office of judge of the City Court of Montgomery, the poAver exists; derived, not from the Constitution, but frcm tlie act of February 13, 1879, to which reference has been made.

The act is entitled, “An act to authorize the Governor by and with the advice and consent of the Senate, to appoint the judge of the City Court of Montgomery.” There was, at the passage of the act, an incumbent of the-office, elected on the first Tuesday of November, 1874, having under the Constitution of 1868 a fixed, defined term of office; entitled to hold office, if there was not legislative abolition of the court, until the next general election of judges, and until the election and qualification of his successor. Under that Constitution and the existing legislation, the next general election would have occurred on the first Tuesday of November, 1880. The present Constitution entitled the incumbent to remain in office until that time — the expiration of the term for which he had been elected. It is in reference to, and in connection with these facts, the act must be interpreted. When analyzed, and so interpreted, the intention of the General Assembly is plain. There was before it a single subject, not naturally or logically divisible — the office of judge of the City Court of Montgomery, and the mode of filling it — and to this subject and no other, the act is devoted. The first section provides the mode of filling the office, upon the expiration of the term of the then incumbent. Until the expiration of that term, a new, original term of office could not commence — could not commence, because the Constitution provided for the continuance of that term, until its expiration according' to the preceding Constitution. And it is the mode of filling the office in the future, after the expiration and without disturbance of the unexpired term of the incumbent, to which the section relates. The first section, with its limitation, having provided or prescribed, which word is used is not material, the mode of filling the office, the second section provided the tenure or term of office — it is “six years, and until the close of the session of the General Assembly, at which his successor is appointed and confirmed,” as is provided in the first section. The two sections, therefore, exhaust the subject to which the act is devoted, with the exception of supplying, or 'providing the mode of supplying possible vacancies, the term of office continuing. .The clause of the second section, the 'validity of which is now assailed, relates to the filling of 'vacancies, and is in these words: “And in case of any vacancy in said office of judge of said city court, after the passage of this act, such vacancy shall be filled by the Governor, and the person thus appointed shall hold the office until the close of the next ensuing session of the General Assembly, and until his successor is appointed and confirmed.” The act is in itself complete; it meets every condition and phase of the one subject to which it is devoted. • Recognizing the continuance of the term of the prior incumbent, it first provides the mode of filling the office when that term has expired— it then provides the tenure or term of office; and then, it provides the mode of supplying possible vacancies, whether the vacancy is of the unexpired term of the then incumbent, or vacancies of subsequent occurrence; and it provides the duration of an appointment to fill a vacancy. The power of the General Assembly to enact the statute, is not the matter of controversy. The controversy is, whether the single subject to which the act is devoted is expressed in its title; or, to state the proposition precisely, whether the title is broad enough to comprehend the clause conferring on the Governor the power to fill vacancies.

The clause of the Constitution supposed to be offended, that “each laAv shall contain but one subject, which shall be clearly expressed in its title,” excepting particular laws it is not now necessary to enumerate, lias been of frequent consideration in this and other courts, and the rules governing the determination of all questions arising under it, are well settled. In passing upon the constitutionality of statutes, it is a universal rule, that all reasonable presumptions are indulged in favor of legislative action; before sentence of nullity is pronounced against it, the infraction of the Constitution must be clear; and to this unvarying rule, statutes supposed to be violative of this clause of the Constitution are not an exception.- — State v. Rogers, 107 Ala. 444. It is not within the province of the courts to sit in judgment upon the title, and determine whether it could not have been drawn in some other form, more clearly or definitely indicating the subject to which the body of tbe act relates. Tbe legislature is not subject to judicial control in respect to the form or mode-in which the subject of a law shall be expressed in the title. If the subject be expressed, the mandate and all the purposes of the Constitution are satisfied. — People v. Banks, 67 N. Y. 568. In Ex parte Pollard, 40 Ala. 77-98, it was said by A. J. Walker, C. J.: “It is impossible ho prescribe any standard of particularity for the legislature. The Constitution has not attempted to do so. It exacts from the legislature an announcement in the title of the subject, but does not dictate any degree of particularity. This is a matter left to the legislative discretion. * * * * * The object of the Constitu-

tional provision was to prevent deception by the inclusion in a bill of matter incongruous with the title. The evil contemplated was not the generality and comprehensiveness of title. These faults do not tend to mislead or deceive.” Further: “The particular subject selected by the legislature and put in the title must embrace-every part of the law. The question must always be, whether, taking from the title the subject, we can find anything in the bill which cannot be referred to that subject. If we do, the law embraces a subject not described in the title. But this conclusion should never be attained, except bjr argument characterized by liberality of construction and freedom from all nice verbal criticism.” The thought last expressed, that this clause of the Constitution must be liberally, not closely or narrowly construed, embarrassing legislation, has guided and controlled judicial decision. As is said by Mr. Freeman in note to Davis v. State, 61 Am. Dec. 339: “All the cases involving a discussion of this constitutional restriction are guided by this generous principle of liberal construction. While in a large number of decisions this doctrine is not announced, their tenor and effect show that the court in rendering them were controlled by its overshadowing influence.”

Another of the rules observed, is that declared by Stone, J., in Ballentyne v. Wickersham, 35 Ala. 536: “That the title of a bill may be very general, and need not specify every clause in the statute. Sufficient if they are all referable, and cognate to the subject expressed. And when the subject is expressed in general terms, every tiling wliich is necessary to make a complete enactment in regard to it, or which results as a complement of the thought contained in the general expression, is included in, and authorized by it.” The rule was announced and applied in State v. Harrub, 95 Ala. 176; Ex parte May & Ald. of Birmingham, 116 Ala. 186.

Tested by.these general rules, we conclude, the title of the act must be construed as expressing but one general subject, comprehending all that constitutes its body. It would be mere clinging to the letter and words, to construe the title as restrictive, or limiting the subject of the act, to an appointment of the judge by and with the concurring action of the Governor and Senate, in all events and contingencies. The members of the General Assembly knew, that the term of office of the then incumbent would expire upon the meeting of the next session of the Geheral Assembly. They knew that the office had ceased to be elective — they knew, if an interregnum in the office was not suffered, that the mode of filling it must, be prescribed at that session, in the exercise of the exclusive power to prescribe the mode of filling it, the Constitution granted to the General Assembly. The title of the act gave notice to the members of the General Assembly, and to all specially interested, that the purpose was the performance of the duty devolved by the Constitution; and it is not partial or fragmentary performance, the title, expresses. In general terms, it expresses as the subject of the act, authority to the Governor by and with the advice and consent of the Senate, to appoint, the. judge. But it is' not to be conceived, that it was unknown to the General Assembly, that vacancies in the office might occur, when the General Assembly was not in session, and there could not be an appointment by the concurring action of the Senate and the' Governor. Nor can it be conceived, that it was supposed from the title, the filling of such vacancies was intended to be the matter of other additional or supplementary legislation. Beading the title in relation to and in connection with the legislative necessity inducing the passage of the act, and indulging the .liberality or generosity .of construction it is a duty to indulge, the clause conferring on the Governor the power to fill vacancies occurring during the recess of tlie General Assembly is within the scoj>e of the title — a mere subsidiary power, having relation to the general, main power conferred on the Governor and the Senate.

Let the judgment of the Circuit Court be affirmed.

McClellan and Haralson, JJ., 'concurring.