Randolph v. Baldwin , 41 Ala. 305 ( 1867 )

BYRD, J.

The only question involved in these cases is, whether a judgment rendered by the county court of Montgomery county, in 1862, is valid. The counsel for appellants contend, that the judge of that court was not elected by the people to fill the office created by the act of the 24th February, 1860, and that therefore the judgments rendered by him are void, and reversible on appeal.—Pamph. Acts, 564. To sustain this position, they insist, that the amendment to the constitution adopted in 1850 makes it the duty of the general assembly to provide “ by law for the election of judges of the circuit courts by the qualified electors of their circuits respectively, and for the elections of judges of the courts of probate, and other inferior courts, by the qualified electors of the counties, cities, or districts, for which such courts may be respectively established”; and that, therefore, so much of the act as provides that “ the judge of probate in said county shall be the judge of said county court within said county,” is unconstitutional, and the acts of the judge in that court are void. On the other hand, it is argued, that the judge of probate having been elected by the people of the county, after the passage of the act, and before the rendition of the judgments, his acts are valid.

No one questions the power of the general assembly to establish by law inferior courts, with common-law jurisdiction, within a county, city, or district; and should it do so, we see no good reason why the legislature can not authorize any judicial officer, who has been elected by the people, to preside in such inferior court, if such officer has been elected by the people under the jurisdiction of the court thus established. In the case of Marvin v. Gaines, (19 Ala. 498,) this court said: “ To hold all such acts as are performed by inferior officers void, because such officers have not been commissioned or qualified as the constitution requires judges to be elected and qualified, would be to unsettle the titles of the country, and to introduce a scene of confusion which would greatly disturb the public repose.” This announces a doctrine stronger than is required to sustain the validity of these judgments.

But, if it were doubtful whether the general' assembly had the power to designate such an officer as above indicated to preside in such inferior court, it would be our duty to sustain the exercise of such a power. And these judgments having been ratified and confirmed by the convention of 1865, (Ordinance No. 26,) relieves them, in our opinion, from any objection which might be taken to them on the ground that, at the time of their rendition, the State was in a position of open hostility and war with the Federal government.

Judgments affirmed.