James Jefferson Mayfield Alabama.

Constitutions of 1875 and 1901: paralleled, annotated and indexed, by James ... online

. (page 19 of 33)
Online LibraryJames Jefferson Mayfield AlabamaConstitutions of 1875 and 1901: paralleled, annotated and indexed, by James ... → online text (page 19 of 33)
Font size
QR-code for this ebook


below that number, the Legislature shall
include such county in a Circuit and
Chancery Division, or either, embracing
more than one county. No Circuit or
Chancery Division shall contain less than
three counties, unless there be embraced
therein a county having a population of
twenty thousand or more, and taxable
property of three million five hundred
thousand dollars or more in value.

Sec. 148. The Legislature may con-
fer upon the Circuit Court or the Chan-
cery Court the jurisdiction of both of
said courts. In counties having two or
more courts of record, the Legislature
may provide for the consolidation of all
or any such courts of record, except
the Probate Court, with or without sep-
arate divisions, and a sufficient number
of Judges for the transaction of the busi-
ness of such consolidated court.

Sec. 149. The Legislature shall have
power to establish in each county a court
of probate, with general jurisdiction of
orphan's business and with power to
grant letters testamentary and of ad-
ministration ; provided, that whenever any
court having equity powers has taken
jurisdiction of the settlement of any es-



1875.— ^Article VI.



Sec. 9. The General Assembly shall
have power to establish in each county
within the State a Court of Probate, with
general jurisdiction for the granting of
letters testamentary and of administra-
tion, and for orphans' business.



[Sec. 149.1—

A specific grant of unrestricted and general
jurisdiction over the granting of letters testa-
mentary and of administration and for or-
phans' business. — IkelHeimer v. Chapman, 32
AJa., 676 ; Gray v. Cruise, 36 Ala., 559 ; Coltart
V. Allen^ 40 Ala., 155; Balkum v. Staite, 40 Ala.,
671 ; Carswell v. Spencer, 44 Ala.., 204 ; Hall
V. Hall, 47 Ala^290 ; Wright v. Ware, 50 Ala.,
549; Bean v. Chapman, 62 Ala\, 58; Sims v.
Waters, 65 Ala.^ 442; Hatchett v. Billingslea,
65 Ala., 16; Steele v. Tutwiler 68 Ala., 107;
Landford v. Dunklin, 71 Ala., 594; Morgan v.
Casey, 7Z Ala., 222 ; Barclift v. Treece, 77 Ala..
528.

But there is a class of cases involving testa-
mentary trusts and powers of which the Pro-
bate Court has not jurisdiction. — Ex parte
Dickson* 64 Ala., 188; Penny v. Werborn, 72



Ala., 58; Foxworth v. White, 72 Ala., 224;
Hinson v. Williamson, 74 Ala., 180; Creamer
v. Holbrook, 99 AI9.. 52.

Power of Chancery Court to appoint admin-
istrator ad litem. — Malone v. Hill, 60 Ala.,
225.

No prohibition against conferring on Pro-
bate Courts judicial cognizance of matters also
within the jurisdiction of other courts. — Bal-
kum V. State, 40 Ala., 6I71 j Randolph v. Bald-
win, 41 Ala., 305.

The office of Probate Judge is the creature of
statute under which dt exists, and by which
its character is defined. — ^Thompson v. Holt,
52 Ala., 491.

Authority .to appoint special administrators
in cases requiring such is included in the
power conferred upon Probate Courts. — Breed-
ing V. Breeding 128 Ala., 412.



Digitized by



Google



Constitutions of Alabama



83



Jvdidal Department,



1901. — ^Article VI.

tate, it shall have power to do all things
necessary for the settlement of such es-
tate, including the appointment and re-
moval of administrators, executors, guar-
dians and trustees, and including action
upon the resignation of either of them.

Sec. 150. The Justices of the Supreme
Court, Chancellors, and the Judges of
the Circuit Courts and other courts of
record, except Probate Courts, shall, at
stated times, receive for their services a
compensation which shall not be dimin-
ished during their official terms; they
shall receive no fees or perquisites, nor
hold any office, except judicial offices, of
profit or trust under this State or the
United States, or any other government,
during the term for which they have
been elected or appointed.

Sec. 151. The Supreme Court shall
consist of one Chief Justice and such
number of Associate Justices as may be
prescribed 6y law.

Sec. 152. The Chief Justice and As-
sociate Justices of the Supreme Court,
Judges of the Circuit Courts, Judges of
Probate Courts, and Chancellors shall be
elected by the qualified electors of the
State, Circuits, Counties and Chancery
Divisions, for which such courts may be
established, at such times as may be
prescribed at law, except as herein other-
wise provided.

Sec. 153. The Judges of such inferior
courts of law and equity as may be by
law established, shall be elected or ap-



1875. — ^Article VI.



Sec. 10. The Judges of the Supreme
Court, Circuit Courts, and Chancellors
shall, at stated times, receive for their
services a compensation which shall not
be diminished diiring their official terms ;
but they shall receive no fees or perqui-
sites, nor hold any office (except judicial
offices) of profit or trust under this State
or the United States, or any other power,
during the term for which they have been
elected.



Sec. II. The Supreme Court shall
consist of one Chief Justice and such
number of Associate Justices as may be
prescribed by law.

Sec 12. The Chief Justice and Asso-
ciate Justices of the Supreme Court,
Judges of the Circuit Courts, and Chan-
cellors shall be elected by the qualified
electors of the State, circuits, counties,
and chancery divisions, for which such
courts may be established, at such times
as may be prescribed by law.



Sec 13. The Judges of such Inferior
Courts of law and equity as may be by
law established, shall be elected or ap-



[Sec. 10, Art. VI., 1875.]—

Protection extended only to Judges of the
Supreme aiKl Circuit Courts and Chancellors;
not to Judges of inferior statutory courts.—
Perkins v. Corbin, 45 Ala^, 103; Ex parte
Roundtree, 51 Ala., 42; Ex parte Amos, 51
Ala., 57. (Sec. 150 of 1901 extends it)

A fixed term and compensation is deemed
essential to preserve the independence of the
judiciary created by the Constitution. — State
V. Sayre, 118 Ala., i.

The Judges of the Supreme, Circuit, Chan-
cery and Probate Courts are protected from
legislative invasion. — State v. Sayre, 118 Ala., i.

A reduction of the salary of a Judge on ac-
count of his absence when ill. — White v. State,
ex rel., Denson, 123 Ala., 577.

[Sec 152.]—
Legfislature cannot make the Judge of the



Circuit Court, in whose circuit an inferior
court is established, the Judge thereof. — Ex
parte Roundtree^ 51 Ala.. 42.

The ofiice of Probate Judge is statutory; a
bond may be required of him for the faithful
performance of ministerial duties. — ^Thompson
v. Holt, 52 Ala., 491.

[Sec 153.]—

County Courts may be established, of which
the Judge of Probate is ex-officio Judge. — Bal-
kum V. State, 40 Ala., 671 ; Randolph v. Bald-
win^ 41 Ala., 305.

City Courts of which the Judges may be
elected or appointed, and the court and office
abolished at will.— Perkins v. Corbin, 45 Ala.,
103.

And jurisdiction of Circuit Court may be
conferred upon Judge of Probate. — Moore v.
State, 68 Ala., 360.



Digitized by



Google



84



Constitutions of Alabama



Judicial Depa/rtmenL



1901. — ^Article VI.
pointed in such mode as the Legislature
may prescribe.

Sec. 154. Chancellors and Judges of
all courts of record, shall have been citi-
zens of the United States and of this
State for five years next preceding their
election or appointment, and shall be
not less than twenty-five years of age,
and, except Judges of Probate Courts,
shall be learned in the la>y.

Sec. 155. Except as otherwise pro-
vided in this article, the Chief Justice
and Associate Justices of the Supreme
Court, Circuit Judges, Chancellors, and
Judges of Probate, shall hold office for
the term of six years, and until their
successors are elected or appointed, and
qualified; and the right of such Judges
and Chancellors to hold their offices for
the full term hereby prescribed shall not
be affected by any change hereafter made
by law in any circuit, division or county,
or in the mode or time of election.

Sec. 156. The Chief Justice and Asso-
ciate Justices of the Supreme Court
shall be chosen at an election to be held
at the time and places fixed by law for
the election of members of the House of
Representatives of the Congress of the
United States, until the Legislature shall
by law change the time of holding such
election. The term of office of the
Chief Justice, who shall be elected in the
year nineteen hundred and four, shall be
as provided in the last preceding section.
The successors of two of the Associate
Justices elected in the year nineteen hun-
dred and four shall be elected in the year .
nineteen hundred and six, and the suc-
cessors of the other two Associate Jus-
tices elected in nineteen hundred and
four, shall be elected in the year nineteen
hundred and eight. The Associate
Justices of said court elected in the year
nineteen hundred and four shall draw
or cast lots among themselves to deter-
mine which of them shall hold office. for
the terms ending, respectively, in the
years nineteen hundred and six and nine-
teen hundred and eight, and tmtil their
respective successors are elected or ap-
pointed and qualified. The result of



1875. — Article VL
pointed in such mode as the General
Assembly may prescribe.

Sec. 14. The Judges of the Supreme
Court, Circuit Courts, and Chancellors,
and the Judges of City Courts shall have
been citizens of the United States and of
this State for five years next preceding
their election or appointment, and shall
be not less than twenty-five years of age,
and learned in law.

Sec. 15. The Chief Justice and Asso-
ciate Justices of the Supreme Court, Cir-
cuit Judges, Chancellors, and Probate
Judges shall hold office for the term of
six years, and until their successors are
elected or appointed and qualified; and
the right of such Judges and Chancellors
to hold their offices for the full term
hereby prescribed shall not be aflfected by
any change hereafter made by law in any
circuit, division, or county in the mode or
time of election.



Digitized by



Google



Constitutions of Alabama



85



J^ididal Department.



1901. — ^Article VI.
such determination shall be certified to
the Governor, by such Associate Justices,
or a majority of them, prior to the first
day of January, nineteen hundred and
five, and such certificate shall be entered
upon the minutes of the court. In the
event of the failure of said Associate
Justices to make and certify such deter-
mination, the Governor shall designate
the terms for which they shall respect-
ively hold office, as above provided, and
shall issue his proclamation accordingly.
In the event of an increase or reduction
by law of the number of Associate Jus-
tices of the Supreme Court, the Legis-
lature shall, as nearly as may be, provide
for the election, each second year, of one-
third of the members of said court.

Sec. 157. All judicial officers within
their respective jurisdictions shall, by
virtue of their offices, be conservators of
^e peace.



Sec. 158. Vacancies in the office of
any of the Justices of the Supreme Court
or Judges who hold office by election, or
Chancellors of this State, shall be filled
by appointment by the Governor. The
appointee shall hold his office tmtil the
next general election for any State officer
held at least six months after the vacancy
occurs, and until his successor is elected
and qualified; the successor chosen at
such election shall hold office for the un-
expired term and until his successor is
elected and qualified.

Sec. 159. Whenever any new Circuit
or Chancery Division is created the Judge



1875. — ^Article VI.



Sec. 16. The Judges of the Supreme
Court shall, by virtue of their offices, be
conservators of the peace throughout the
State ; the Judges of the Circuit Courts,
within their respective circuits, and the
Judges of the Inferior Courts, within
their respective jurisdictions, shall, in
like manner, be conservators of the peace.

Sec. 17. Vacancies in the office of any
of the Judges or Chancellors of this
State shall be filled by appointment by the
Governor ; and such appointee shall hold
his office for the unexpired term, and
tmtil his successor is elected or appointed
and qualified.



[Sec. 17, Art. VL, 1875.]—

The G>nstitution and Legislature create two
classes of public offices and officers. — State v.
Savre, 118 Ala., i; Ex parte Wiley, 54 Ala.,
226.

This provdsion of the Constitution does not
apply to Judge of inferior courts. — State v.
Sayre» 118 Ala., i.

The granting of this unlimited power of
elections or appointment of Judges of inferior
courts confers every necessary power to make
the grant eflFectual. — State v. Sayrc, 118 Ala., i.



Judges of inferior courts aire distinguished
from Judges of constitutional courts so far
as to terms of office, mode of election or ap-
pointment or filling vacancies ; statutes control
this. As to this, the power of the Legislature
is plenary and not under control of the Consti-
tution. — Winter v. Sayre, 118 Ala., i.

The Legislature may prescribe the terms of
office for Judges of inferior courts, prescribe
the mode of appointment or election, and when
the terms shall begin and end.— Winter v.
Sayrc, 118 Ala., i; Coleman and Head, J. J.,
dissenting.



Digitized by



Google



86



Constitutions of Alabama



Judicial Department,



1901. — ^Article VL
or Chancellor therefor shall be elected at
the next general election for any State
officer for a term to expire at the next
general election for Circuit Judge and
Chancellors; provided, that if said new
Circuit or Chancery Division is created
more than six months before such gen-
eral election for any State officer, the
Governor shall appoint some one as
Judge or Chancellor, as the case may be,
to hold the office until such election.

Sec. 160. If in any case, civil or crim-
inal, pending in any Circuit Court,
Chancery Court, or in any court of gen-
eral jurisdiction having any part of the
jurisdiction of a Circuit and a Chancery
Court, or either. of them in this State, the
presiding Judge or Chancellor shall, for
any legal cause, be incompetent to try,
hear or render judgment in such case,
the parties, or their attorneys of record,
if it be a civil case, or the solicitor or
prosecuting officer, and the defendant or
defendants, if it be a criminal case, may
agree upon some disinterested person
practicing in the court and learned in the
law, to act as a special Judge or Chancellor
to sit as a court, and to hear, decide, and
render judgment in the same manner
and to the same effect as such incompe-
tent Chancellor or Judge could have ren-
dered but for such incompetency. If the
case be a civil one, and the parties or
their attorneys of record do not agree;
or if it be a criminal one, and the prose-
cuting officer and the defendant or de-



1875. — ^Article VI.



Sec. 18. If in any case, civil or
criminal, pending in any Circuit, Chan-
cery, or City Court in this State, the pre-
siding Judge or Chancellor shall, for any
legal cause, be incompetent to try, hear,
or render judgment in such cause, the
parties or their attorneys of record, if
it be a civil case, or the solicitor or other
prosecuting officer, and the defendant
or defendants, if it be a criminal case,
may agree upon some disinterested per-
son practicing in the court and learned in
the law, to act as special Judge or Chan-
cellor, to sit as a court, and to hear, de-
cide, and render judgment in the same
manner and to the same effect as a Judge
of the Circuit or City Court, or Chancd-
lor sitting as a court might do in such
case. If the case be a civil one, and the
parties or their attorneys of record do
not agree, or if the case be a criminal
one, and the prosecuting officer and the
defendant or defendants do not agree
upon a special Judge or Chancellor, or
if either party in a civil cause is not rep-



[Sec. 160.]—

Mr. Cooley says that he does not see how
the Legislature can have any power to abolish a
maxim which is among the fundamentals of
judicial authority. That the people of the
State, in framing the Constitution, might possi-
bly establish so great an anomoly, but that the
Legislature is not audiorized so to do. That to
empower one party to a suit to decide it for
himself is not within the Legislative authority.
He further says that he does not see how ob-
jections of interest can be waived by the other
party; that the Judge is not then proceeding
irregularly, but is acting without jurisdiction;
that if even one of the Judges is disqualified
the judgment rendered is void, though the
proper number may have concurred in the re-
sult, not reckoning the interested party. Mere
formal acts necessary to enable the cause to



be brought before the proper tribunal for ad-
judication, an interested jucfee may do, but that
is the extent of his power. — Cooley Const Lim.,
SIC, 511; Queen v. Justice of Hertfordshire, 6
Q. B., 753; 18 Q. B., 416, 421; Heydenfeldt v.
Towns, 27 Ala., 423.

It a disquaKfied Judge arranges for an-
other Judge to hold fiie term, he may try and
determine the issues arising in the case in
which the regular Judge is disqualified. — Payne
V. State, 60 Ala., 8a

Relationship within the fourth degree of con-
sanguinity or affinity disqualifies. — Gill v. State,
61 Ala., 169.

Statutory provisions are not exclusive of dis-
qualifications imposed by the common law. —
Medlin v. Taylor,. loi Ala., 239; Pegues v.
Baker, no Ala., 2';i .



Digitized by



Google



Constitutions of Alabama



'87



Judicial Department,



1 90 1. — ^Article VI.
fendants do not agree upon a special
Judge or Chancellor, or if either party in
a civil cause is not represented in court,
the Register in Chancery or the Clerk of
such Circuit or other Court in which said
cause is pending, shall appoint a special
Judge or Chancellor, who shall preside,
try and render judgment as in this sec-
tion provided. The Legislature may
prescribe other methods for supplying
special Judges in such cases.

Sec. 161. The Legislature shall have
power to provide for the holding of
Chancery and Circuit Courts, and for the
holding of courts having the jurisdiction
of Circuit and Chancery Courts, or either
of them, when the Chancellors or Judges
thereof fail to attend regular terms.

Sec. 162. No Judge of any court of
record in this State shall practice law in
any of the courts of this State or of the
United States,

Sec. 163. Registers in Chancery shall
be appointed by the Chancellors of the
respective divisions, and shall have been
at least twelve months before their ap-
pointment, and shall be at the time of
their appointment and during their con-
tinuance in office, resident citizens of the
district for which they are appointed.
They shall hold office for the term for
which the Chancellor making such ap-
pointment was elected or appointed.
Such Registers shall receive as compen-
sation for their services only such fees
and commissions as may be specifically
prescribed by law, which fees shall be
uniform throughout the State.

Sec. 164. The Clerk of the Supreme
Court shall be appointed by the Judges
thereof, and shall hold office for the term
of six years ; and the Clerks of such in-
ferior courts as may be established by
law shall be selected in such manner as
the Legislature may provide.



Sec. 165. Qerks of the Circuit Court
shall be elected by the qualified electors
in each county for the term of six years,
and may, when appointed by the Chan-
cellor, also fill the office of Register in



1875. — Article VI.
resented in court, the Qerk of the Circuit
or City Court, or Register in Chancery,
of the court in which said cause is pend-
ing, shall appoint the special Judge or
Chancellor, who shall preside, try, and
render judgment as in this section pro-
vided.



Sec. 19. The General Assembly shall
have power to provide for the holding
of Circuit and Chancery Courts in this
State, when the Judges or Chancellors
thereof fail to attend regular terms.



Sec. 20. No Judge of any court of
record in this State shall practice law in
any of the courts of this State or of the
United States.

Sec 21. Registers in Chancery shall
be appointed by the Chancellors of the
divisions, and shall hold office during
the term of the Chancellor making such
appointment; and such Registers shall
receive as compensation for their serv-
ices only such fees and commissions as
may be specifically prescribed by law.



Sec 22. A Qerk of the Supreme
Court shall be appointed by the Judges
thereof, and shall hold office during the
term of the Judges making the appoint-
ment; and Qerks of such Inferior
Courts as may be established by law
shall be appointed by the Judges thereof,
and shall hold office during the term of
the Judge making such appointment.

Sec. 23. Clerks of the Circuit Court
shall be elected by the qualified electors
in each county for the term of six years.
Vacancies in such officq shall be. filled by
the Governor for the unexpired term.



Digitized by



Google



88



Constitutions op Alabama



Judicial Department.



1901. — Article VI.
Chancery. Vacincies in such office of
Clerk shall be filled by the Judge of the
Circuit Court for the unexpired term.

Sec. 166. The Clerk of the Supreme
Court and Registers in Chancery may be
removed from office by the Justices of
the Supreme Court, and by the Chancel-
lors, respectively, for cause, to be entered
at length upon the minutes of the court.

Sec. 167. A Solicitor for each Judicial
Circuit or other territorial subdivision
prescribed by the Legislature, shall be
elected by the qualified electors of those
counties in such circuit or other territo-
rial subdivision in which such Solicitor
prosecutes criminal cases, and such Solic-
itor shall be learned in the law, and shall
at the time of his election and during his
continuance in office, reside in a county
(in the circuit) in which he prosecutes
criminal cases, or other territorial sub-
division for which he is elected, and his
term of office shall be for four years, and
he shall receive no other compensation
than a salary, to be prescribed by law,
which shall not be increased during the
term for which he was elected ; provided,
that this Article shall not operate to
abridge the term of any Solicitor now in
office; and, provided further, that the
Solicitors elected in the year nineteen
hundred and four shall hold office for six
years, and until their successors are
elected and qualified; and provided fur-
ther, that the Legislature may provide
by law for the appointment by the Gov-
ernor or the election by the qualified
electors of a county of a Solicitor for any
county.

Sec. 168. In each precinct not lying
within, or partly within, any city or in-
corporated town of more than fifteen
hundred inhabitants, there shall be



1875. — ^Article VI.



Sec. 24. The Clerk of the Supreme
Court and Registers in Chancery may be
removed from office by the Judges of the
Supreme Court and Chancellors respec-
tively, for cause, to be entered at length
upon the records of the court.

Sec 25. A solicitor for each Judicial
Circuit shall be elected by joint ballot
of the General Assembly, who shall be
learned in the law, and who shall, at the
time of his election, and during his con-
tinuance in office, reside in the circuit
for which he is chosen, and whose term
of office shall be for six years ; Provided,
that the General Assembly, at the first
session thereof after the ratification of
this Constitution, shall, by joint ballot,
elect a Solicitor for each Judicial Cir-
cuit of the State, whose term of office
shall begin on Tuesday after the first
Monday in November, eighteen hundred
and seventy-six, and continue for four
years; And provided, that the General
Assembly may, when necessary, provide
for the election or appointment of
County Solicitors.



Sec 26. There shall be elected by the
qualified electors of each precinct of the
counties not exceeding two Justices of
the Peace and one Constable. Such



[Sec. 2S, Art. VI, 1875]—

Mandatory as to Circuit SoKcitors; permis-
sive as to county. — Ex parte Lusk, 82 Ala.,
519-
ISic. 168.1—

Not self-executiusr. — Pearce v. Pope, 42 Ala.,
319; Taylor v. Woods, 52 Ala., 474; Carter v.
/Sord, 64 Ala., 236; K. C. M. & B. R. Co. v.
Whitehead, 109 Ala., 495.

JurisdicUon generally. Jurisdiction, in case



of moneyed demand, is determined by the
amount legally due or actually claimed, not



Online LibraryJames Jefferson Mayfield AlabamaConstitutions of 1875 and 1901: paralleled, annotated and indexed, by James ... → online text (page 19 of 33)