Henry v. State Ex Rel. Welch , 200 Ala. 475 ( 1917 )

The majority, composed of ANDERSON, C. J., McCLELLAN, GARDNER, and THOMAS, JJ., concur in the conclusion of Justice SOMERVILLE as to what constitutes the "solicitor's fund" of Jefferson county, but do not agree that section 11 of the act of 1900, or the amendment thereof by the act of 1915 (Local Acts, 1915, p. 23), is violative of section 45 of the Constitution. We think that said section before and after amendment was germane and cognate to the general subject title of the act of 1887 (Acts 1886-87, p. 835) establishing the criminal court for Jefferson county. Nor do we think that the same is repugnant to so much of said section 45 of the Constitution as forbids the extension, amendment, or revision of a law by reference to the title only as the acts are complete in themselves. State ex rel. Terry v. Lanier, 72 So. 320;² State v. Rogers, 107 Ala. 444, 19 So. 909, 32 L.R.A. 520. The case of Ferguson v. Court of County Commissioners, 187 Ala. 645, 65 So. 1028, was rested upon Tuskaloosa Bridge Co. v. Olmstead, 41 Ala. 9, wherein it was held that under what is now section 45 of our Constitution a law could not be amended or revised by reference only to its title, and wherein it was pointed out that the purpose of said constitutional provision was that the Legislature may not be misled or mistaken as to the enactment, and also that the Governor may be better informed as to what he is called upon to approve or to veto, and that others may also be assisted as against any misapprehension. The acts under review in the above authorities attempted amendment of a law by reference to title only and by addition of other sections thereto, nothing appearing in the amendment to indicate the law sought to be amended, and hence these cases came directly within the prohibitory clause of said section 45 of the Constitution. Such is not the situation here presented, as much of the act sought to be amended is set out, and indeed the substance thereof appears in the amendatory act, and the Tuskaloosa Bridge Co. and Ferguson Cases, supra, cannot be extended so as to embrace the act under review.

While we hold that the act of 1915 (page 23) is still in force, and that the county solicitor is clothed with certain authority there given and as to which he has a discretion, and that this power was preserved until 1919 by the general solicitors' act subsequently enacted, we must not be understood as holding that other parts of the general solicitors' law may be ignored by the county solicitor in the exercise of the powers given him under said general law, or the local act of 1915, so as to clothe him with the authority to disregard the prosecuting officers expressly provided for the administration of the criminal laws of the Tenth circuit, which is composed entirely of Jefferson county. In other words, the Legislature has expressly furnished a circuit solicitor to be paid by the state, and expressly authorized him to appoint three assistants to be paid in the greater part by the state, and it was contemplated that these officials should be utilized to the fullest extent before the temporary chief prosecuting officer of the county would deem it necessary to resort to assistance at the expense of the solicitor's fund. The Legislature evidently did not intend to furnish these expressly designated and well-paid officials to remain idle or become pensioners upon the state upon a capricious abuse of the authority and discretion of the county solicitor, who was made the chief prosecuting officer of the circuit until 1919. It is manifest that he was expected to see that they did work and not prevent them from doing so, and until the force expressly provided is proven inadequate to properly administer the criminal laws of the circuit no occasion should arise for the employment of assistants by the "chief prosecuting officer." Why the Legislature should have made the county solicitor, and not the circuit solicitor, the chief prosecuting officer of the circuit, or why the circuit solicitor, and not the county solicitor, was given the authority to name the assistants, we are not concerned; but this court is concerned with a reasonable and common sense interpretation and enforcement of the law.

It is well-settled law that when the duty to be performed is judicial or involves the exercise of discretion on the part of a tribunal or officer, mandamus will lie to set judgment or discretion in motion, but will not direct the manner of its exercise.

"The writ cannot be used for the correction of errors. If, however, judgment or discretion is abused and exercised in an arbitrary and capricious manner, mandamus will lie to compel a proper exercise thereof." 19 Amer. Eng. Ency., pp. 737-739; State ex rel. Mobile v. Board of Revenue, 180 Ala. 494,61 So. 368; White v. Decatur, 119 Ala. 476, 23 So. 999.

Whether or not these observations are essential to a decision of the present controversy matters not, as they are at least appropriate to prevent a misconception of the scope and extent of what we have decided in holding that the mandamus should have been awarded under the facts and issues here involved.

In granting the petitioner's relief we assume that the discretion given the county solicitor to employ "assistance" has not been capriciously abused, nothing to the contrary appearing from the record. We therefore hold that the trial court correctly awarded the writ of mandamus in the Welch Case and erroneously refused the same in the Ray Case.

ANDERSON, C. J., and McCLELLAN, GARDNER, and THOMAS, JJ., concur. SAYRE and SOMERVILLE, JJ., dissenting in part. MAYFIELD, J., not sitting.

² 197 Ala. 1.