Carroll v. State , 58 Ala. 396 ( 1877 )

BBICKELL, C. J.

On the 8th of February, 1877, an act of the general assembly was approved, which confers on justices of the peace and notaries public, having like powers, in several counties, and of them tbe county of Lee, original jurisdiction concurrent witb tbe Circuit Court, of all misdemeanors committed in said counties. — Pampb. Acts 1876-7, p. 197. Tbe single question tbis case presents, is the validity of tbis enactment, so far as it confers jurisdiction on notaries public.

Tbe ninth section of tbe first article of tbe Constitution authorizes tbe general assembly to dispense witb a grand jury in prosecutions for misdemeanor, and to confer on justices of tbe peace, or such other inferior courts as may be by law established, jurisdiction of such prosecutions. Tbe twenty-sixth section of tbe sixth article prescribes tbe number of justices of tbe peace — tbe mode of their election, and tbe extent of their civil jurisdiction, and concludes: “Provided, That tbe governor may appoint one notary public for each election precinct in counties, and one for each ward in cities of over five thousand inhabitants, who, in addition to tbe powers of notary, shall have and exercise tbe same jurisdiction as justices of the peace within tbe precincts and wards for which they are respectively appointed. And provided, That notaries public, without such jurisdiction, may be appointed. Tbe term of office of such justices and notaries public shall be prescribed by law.”

Notaries are of ancient origin, long known to tbe civil and common law. Originally, a mere scribe, taking notes or minutes, and making drafts of writings and public instruments, bis duties were extended witb tbe growth of commerce, and became more frequent in attestation and authentication of instruments peculiar to maritime law, or tbe law merchant. Hence, because of tbe credence which all civilized nations attach to bis attestation and authentication of such acts, to facilitate commercial intercourse, it is said be is an officer known to tbe law of nations. — Kirhsey v. Bates, 7 Port. 529. Statutes have been enacted regulating tbe manner of bis appointment, and to some extent defining bis duties. These duties were strictly ministerial — witb judicial power be was not clothed, nor was be charged witb any judicial duty. Tbe Constitution does not create tbe office. It recognizes its existence, and provides for the mode of filling it. Tbe character of its duties, as defined by tbe common law, or tbe law merchant and maritime law, which bad become incorporated into our common law, and by statutes, relating peculiarly to tbe authentication of instruments, intended as matter of evidence at home and abroad, rendered it peculiarly proper that tbe bead of tbe executive department should be clothed witb tbe power of appointment to tbe office. Tbe Constitution authorizes tbe governor, when appointing, to limit bis power and duty, as it was confined by the common law and existing statutes, to ministerial power and duty, or to authorize him to exercise the jurisdiction of a justice of the peace. It is argued, that as the power of the governor to appoint, and clothe with the jurisdiction of a justice of the peace, is found in the form of a proviso, to the section of the Constitution which defines the civil, and is silent as to the criminal jurisdiction of justices, that the jurisdiction the governor may authorize the notary to exercise is the civil jurisdiction defined in the preceding part of the section. It is a general principle, that the natural and appropriate office of a proviso to a statute, is to restrain or qualify some preceding matter, and upon sound principles of construction it should be confined to what precedes, unless it is clear that it was intended to apply to subsequent matter. — Rawls v. Kennedy, 23 Ala. 240; Pearce v. Bank of Mobile, 33 Ala. 693; Potter’s Dwarris, 118. A proviso, says Baldwin, J., “in deeds and laws is a limitation or exception to a grant made or authority conferred; the effect of which is to declare that the one shall not operate, or the other be exercised, unless in the case provided.” — Voorhees v. Bank of U. S. 10 Pet. 471. In Wayman v. Southard, 10 Wheat. 30, it is said: “The proviso is generally intended to restrain the enacting clause, and to except something which would otherwise have been within it, or in some measure, to modify the enacting clauses.” Another purpose for which it is often employed, is to exclude some possible misinterpretation of the general words of the enacting clause, as extending to cases not intended to be brought within its purview. — Minis v. U. 8. 15 Pet. 423. It does not necessarily follow because the term provided is used, that which may succeed it is a proviso, though that is the form in which an exception is generally made to, or a restraint or qualification imposed on the enácting clause. It is the matter of the succeeding words, and not the form, which determines whether it is or not a technical proviso. This and similar rules of statutory construction, are of limited application in the construction of the Constitution. “Sightly understood and rightly ap•plied, they undoubtedly furnish safe guides to assist us in the task of exposition. But they are susceptible of being applied, and indeed, are often injuriously applied to the subversion of the text and the objects of the instrument.”— 1 Story Const. § 448. The safe rule of constitutional construction, is to regard, not so much the form or manner of expression, as the nature and objects of its provisions, and the end to be accomplished, giving its words their just and legitimate meaning. The provision of the Constitution under consideration is obviously intended to confer on the governor the power of appointing notaries public; and in appointing, either to clothe them only with the powers appropriate to their office, as they were defined by existing laws, or in addition, with the same jurisdiction as justices of the peace. That jurisdiction was defined, not only by the preceding-part of the section, to which this provision is attached, but by section nine of the first article, and by laws which had been passed pursuant to it, under a similar provision in the Constitution of 1865 and 1868. No particular significance can be attached to the form, except that the general power of the qualified' electors of each election precinct to elect two justices of the peace, is not to exclude the power of the governor to appoint notaries, having like jurisdiction. Nor should the power of the governor to appoint such notaries, as is expressed in another provision, having the mere form of a proviso, exclude his power to appoint notaries without such jurisdiction. If the governor has, or may, in the county of Lee, and the other counties named in the act of the 8th February, 1877, as it is admitted in this ease he had, appointed notaries with “the same jurisdiction of justices of the peace,” we cannot doubt the notary is clothed alike with the civil and the criminal jurisdiction of a justice, whether •that jurisdiction is defined by section twenty-six of article six, or by section nine of article one, or by statutes which may have been, or may be enacted in reference to justices. This was the ruling of the Circuit Court, and its judgment is affirmed.