Birmingham age-herald., 1894-12-11
CHANCERY COURTS.

In reference to the State's judicial sys- tenn Governo or Oates, in his message, advo- cates increasing the number of Circuit Judges, In order that justice may be more speedily administered. In this connection he also advises abolishing the Chancery Courts. He says:
 With the increased number of Circuit Judges l recommend there is necessity for the continuance of the office of Chancellor. That office should be abolished, 10 take effect at the expiration of the present term of the in- cumbents, unless they can by law be assigned to the performance of Circuit Court duties, which 1 am inclined to think can be done. Why retain separate chancery system when only three other States in the Union ret ain it2 The constitution declares that the General Assembly shall have the power to establish courts of chancery, but is not compulsory and hence they may be abolis he'd. They have no place in the judicial system of the United States; and in Crest Britain, where the sys- tenn of separate chancery courts originated, 1t was abolished by act of Parliament more than twenty years ago. lawyer who Is ca pablo of discharging the duties of Circuit Judge is equally capable of deciding cases in equity. If the distinction between law and equity which is theoretical. technical and use- less, still be retained, 1t Is an easy matter to keep docket of equity causes in the Circuit Courts. The Justices of the Supreme Court have to decide equity causes on appeal as well as those at common law. It requires no sep arate specia training. Under our system the distinction between law and equity, the latter being defined the correction of that wherein the law, by reason of its universality is dehcient,'' should command less respect than the real object of our judicial system, which is 10 dispense justice in controversies between men, as to rights of property and to enforce goo order and respect for society.
 l~..A 'the distinction between law and equity IS theoretical, technical and useless," is well taken. There is no good argument to be adduced in favor of vesting a court with one to the exclusion of the other. The City Court of Birmingham embraces both law and equity, and 1t works well. The Governor thinks that Cbancery Courts should be abolished. In taking this posi- ton be is probably unconstitutional. If he had simply recommended that both Circuit and Chancery Courts be given concurrent jurisdiction, both at law and in equity, he would have remained within the constitutional limit with out any doubt, and would have sub- served his purpose. But it is doubtful if the General Assembly has the power under the constitution to abolish Chancery Courts. If it has this power it also has the power to abolish the Supreme Court and any other court. It is vested with the power, to tablish and abolish inferior courts, such as the Birmingham City Court, but this power does not extend to any higher court. Section 1 of article 6 of the constitution says: ''The judicial power of the State shall be vested in Cir cult Courts, Chancery Courts" etc. This is peremtory. Section says: "A Chan cery Court shall be held in each district at least once in each year.9' This seems conclu lusive. To abolish the Chan cery Courts would require a constitutional amendment.