Schulte v. Wilke , 167 Ala. 663 ( 1910 )

ANDERSON, J.

The act of 1885 (Acts 1884-85, p. 402) provides for the election and regulation of justices of the peace in such territory in Mobile county as was. formerly embraced within the boundaries, of the late city of Mobile. It divides said territory into eight precincts, and provides a justice of the peace for each' one. This, being a local law, was not repealed by any of the subsequent Codes, and so far as we are advised has not, as to the number of justices of the peace precincts, been repealed by any local law. This law, providing for only eight precincts and a justice of the peace for each one, does not contemplate a tenth precinct and a justice of the peace for same. The Legislature having fixed the number of precincts and the justices of the peace for same, the boundaries or divisions, in so far as they relate to the office of justice of the peace, could only be changed by the Legislature.

It is true the county commissioners are authorized by general law (sections 839 and 340 of the Code of 1907) to change or establish election precincts, and section 4637 provides for two justices of the peace in each election precinct; but this applies only to those justices and precincts not heretofore covered by local law. It may also be true, that Municipal Code, §§ 1106, 1107, authorizes the governing board of a city to create new wards and to divide said wards into voting precincts; but it was not intended that an increase of wards or voting precincts could operate to change the number of justices of the peace or the territorial boundary of their jurisdiction, in the absence of a repeal of the existing local law on the subject.

It therefore results that there could be no office of justice of the peace in and for Ward 10 of the city of Mobile, and Van der Meulen was not even a de facto justice of the peace, and all judgments rendered by him were void, and could not support an appeal, and the proper remedy to review and quash same was by common-law certiorari. — Tallassee Falls v. Jones, 128 Ala. 424, 29 South. 448; Stewart v. Cox, 130 Ala. 676, 30 South. 909; Beach v. Lavender, 138 Ala. 406, 35 South. 352.

The judgment rendered by Yan der Meulen against the petitioner being void, the action of the judge of the city court in failing to quash same was error, and a judgment'is here rendered vacating said judgment,

Reversed and rendered.

Dowdell, C. J., and Sayre and Evans, JJ., concur.