State v. Roden

In my opinion, the actin question is repugnant to the Constitution. While it attempts to abolish the office of justice of the peace in precinct 36 in Dallas county and to create an inferior court in lieu thereof, it gives the said inferior court jurisdiction, both as to subject-matter and territory, in excess of that authorized by section 168 of the Constitution. Section 168 of the Constitution provides for justices of the peace in each precinct, except those within, or partially within, towns and cities having more than 1,500 inhabitants, in case an inferior court is created in lieu thereof. Therefore, where justices of the peace have been provided in precincts lying within, or partially within, such towns and cities, they can only be abolished by the creation of an inferior court in lieu thereof, ex vi termini, an inferior court with only such jurisdiction as could have been given the justices of the peace, and who must be selected for and by the voters of the precinct, or precincts, of such justices of the peace who have been abolished, and not for the entire county, or by the entire county, or for and by any territory lying outside of the precinct, or precincts, lying within, or partly within, said towns or cities. In other words, the framers of our Constitation intended to provide justices of the peace for each precinct, but to authorize the Legislature, in certain instances, to substitute an inferior court within a certain precinct, or precincts, by creating an inferior court to take the place of all justices of the peace in said precinct, or precincts, with the same power and jurisdiction of the justices of the peace, no more and no less, and that said inferior court judge should be confined in his selection to the territory only of the justice, or justices, whose place he takes. I think this conclusion finds support in the case of Alford v. Hicks,142 Ala. 355, 38 So. 752, as well as by the debates in the Constitutional Convention as set out in the opinion of THOMAS, J. I do not mean to hold that there can be no inferior court in the entire county, or parts thereof, with jurisdiction in excess of justices of the peace, but I do think that where an effort is made to substitute an inferior court in a certain precinct, or precincts, for the justices of the peace, the same cannot be accomplished except by the creation of such an inferior court as provided by section 168 of the Constitution.

I am not prepared to take issue with McCLELLAN and SOMERVILLE, JJ., as to the effect of the notice upon the validity of the act, but to my mind the bill must be considered in order to pronounce the notice bad, and if the bill is bad, it has to go down whether the notice is sufficient or not, and I think it safer to condemn the law upon the body of the act rather than for the notice given as to the intention to pass same. I cannot agree with them, however, in the conclusion that the bad part of the bill can be stricken so as to leave the other a separate, valid, and good law. It strikes me that the paramount purpose of the bill was to get rid of justices of the peace in precinct 36, and that everything else in the act was dependent upon that one contingency. I can never think that the Legislature intended to create this inferior court, except for the purpose of abolishing the justices of the peace in precinct 36.