Birmingham state herald. (Birmingham, Ala.) 1895-1897, 1897-01-30

shall hold the office until the close of the
nxXt ensuing session of the general as,
sesnbly," etc. Acts 1S7S-79, p. AIS.
The general assembly had full power
to incorporate this provision in the act
creating the city court of Montgomery,
unless prohibited by some plain provision
Of the constitutions; and the general as
Sembly, having determined for itself, by
the passage of this act, that II had the
power, a co-ordnats branch of the gov
eminent, when called upon to pass upon
the same question, will resolve all doubts
in favor of the rightfulness of the exer-
else of the power by the general assem-
bly,.
The supposed Inhibition of the legisla-
ture to pass the act in question-or rather
the particular part of II in questions
sought. to be supported by reference to
article vi, section II of the constitution,
which is as follows: Vacancies in the
Office of any of the judges or chancel-
lors OF this state shall be filed by APP
pointment by the Governor. and such
appointee shall hold his Office for the
unexpifed term, and until his successor
is elected or appointed and qualified"
The term "any judges" found in this
section If taken in it's broadcast possible
sense. includes. of course. the judges of
all the courts in the state. whether est1b-
lished by the constitution proprio vigore,
or by the Legislature But did the maxi
ers of the constitution intend that th3Se
WORDS SnOulQ receive InlS lHieIDfetdlloA.
The meaning of any part of that instru-
ment must be gathered from considera-
ton of the whole.
1t was evidently the purpose to estab-
fish the supreme court, the circuit courts.
the chancery courts and the courts of
probate-article VI. section land by
the subsequent sections to put the courts
named beyond the power of the general
assembly as to the terms of office, the
CONDENSATION and the powers of the IN
cumbents. The manner of filling SAID
offices primarily and in the event Of q
vacancy is, also declared and put beyond
change.
The power to establish from time to
time inferior courts Is conferred on the
general assembly, and the judges of Such.
courts shall be elected or appointe1 in
such mode as the general assembly nlayJ
prescribe. Art. VII sec. 10. There is9 nor
where any purpose disclosed to limit in
any respect the power of the generaia ass
sembly as, to inferior courts The express
sion or grant OF power to the general as
sembly 10 prescribe the mode in which.
the Judges of such courts shall be elected
or appointed Is the mere statement, out
of abundance of caution, of power the
general assembly would have had If moth
ing had been said on the subject. r -,
The general purpose of article vi. of the
constitution is to esta blish certain courts
and regulate, the same. Whenever 1t is
intended that any provision shall be ap-
pl1caDle 10 ANTERIOR COURTS as wen DIS ~
the courts erected by the constitution,
that intention is expressed in words
which leave no doubt of their meaning,
and it is, not left to more or less uncer-
tain inference. Witness section IA, which
provides for judges of the city court go
nomine in a ca Sc where the general ex-
preston "any judge would have served
every purpose if it had been supposed
that such general expression would be
construed as including city judges So
in section Is, where the provisions for
judges pro tenpore are made specific.
If section II or article vi. applies to in
ferior. courts, then it is a limita ton on
section 10 of the same article, which con-
fers the power OF determining the mode
of appointment in such cases on the gen.
erali assembly and to this extent is in
conflict with it. But it is difficult to con-
ceive any reason why the constitution
should give the general assembly plenary
except in the matter of filling vacancies.
Why should the important power of fill
ing the office in the first place and the
power to abolish at pleasure perkins VS..
Corbin, As Ala. 1893 be left to be exercised
in the wisdom of the general assembly,
while the occasional occurrence of va
cancy be made the object of constitution
al care?
The city court of Montgomery is an in
ferior court, and Is so denominated in the
original act creating it. Acts 1863, p. 121.
And is so because an appeal will lie
from it to the supreme court (Nugent VS..
State, IS Ala. 521)
The Governor derives his power to fill
vacancies in the Office of judge of that
court from the act creating it and not