The Montgomery advertiser., 1904-10-07

,,,.,or is void. It is local law. sCnns,,tution, Section 11o. Wallace vs. ye,.rson County in Ms). Being . local law, 1t is within the influence =, Section 1oS of the Constitution re- n,,,rinr notice of the intention to apply tar inc massage of local laws to be r,,h,,shed in the county or counties rhsrs the matter or thing to be af- t.cted mad be situated. Technically. inc Chancery Court for that district way he situated at Jasper, In Walker County. but 1t cannot be so limited within the purpose and meaning of Section 1oe of the Constitution. The ohiect of the provision was to inform ths neople residing in the counties af- nassed. If however. m yview of this is nosed law. The journal of the two houses failed to show that notice of the proposed law was given in Winston County (House journal, 1903 page 11Io. senate journel 1903. page 1sso) "For the reason stated do not think the act detaching Walker and Winston County from the Northwestern Chan cery Division was constitutionality fected by the Legislation of the pro- erroneous and said act should be held to be valid. then I do not think there is any provision for holding court of equity in Walker or Winston Counties unless the act creating the Fourteenth Judicial Circuit of Walker and Win stop Counties and investing 1t with equity Jurisdiction General acts 1903. pare ss) Is good. No notice of the intention to pass that act was publish ed SO far as appears from the journal of the two houses.
 "If the court follows the case of Wallace vs. Jefferson County. ms. I suppose it will hold that the Four teenth Circuit act is void should the question be presented.
 "second-The legislature has the power to provide for the holding of chancery and circuit courts when the chancellors or judges thereof fail to attend the regular terms. tConstitu- tion. Section 1s1, Constitution 1875. Article VI, Section 19) The act creat- ing the office of supernumerary judge provides that it shall be the duty of every judge and chancellor when fail ing to hold a regular term of his court because of being engaged In holding a special term of court to notify the Governor of the facts (Acts, 1sss-s9. page 237, Section 3) Section 2 of the act declares that the supernumerary judge shall have the power and authori- ty under the direction of the Governor, to hold any regular term of a circuit or chancery court in this State and to exercise all the powers and privileges and to perform all the duties of circuit judges and chancellors while In office. One of the purposes of these several provisions is to enable the supernu- merary judge to hold a regular term of the chancery or circuit court while the judge of the circuit or the chancellor of the division may be prevented from holding such regular term by reason of being engaged in holding a special term in another county or district of the circuit or division.
 'Three-The statute provides that whenever 1t shall be made known to the Governor that a regular term of the circuit court will not be held by reason of the failure of the judge to attend such term. the Governor may appoint a special judge to hold the regular term. Code, Section 92S). The validity of this statute has been twice sustained by the Supreme Court Louisville and Nashville Railroad Company vs. Malone, 116 Ala. 500: Bell vs. State, 1i5 25.) I cannot see any reason why the statute should not ap- ply if the failure of the judge to at- tend the regular term Is because of his being engaged in holding a special term m dnOtneT county OI HIS to the same extent as 1t would If such failure to attend the regular term was caused by sickness or for any other reason. I think under the statute cited that If circuit judge should not be able to hold a regular term of court in any other county be- cause he Is engaged in holding a special term in another county of his circuit and the Governor has authority to ap- point a special judge to hold such regular term and such special judge may hold the same.
 "Fourth-when the circuit solicitor is absent the presiding judge may appoint "a competent attorney to act in the soil citors place Code 5522; acts 1903. page 4l7; Edson vs. State. l34 Alabama. 5O.) The cause of the absence of the solicitor can exert no influence upon the power of the court to appoint a special solicitor. The power exists to the same extent when the court from which the solicitor Is absent Is presided over by the supernumerary judge or by a special judge as when 1t is pre- sided over by the Fegular judge.
 "Fifth-If the judgment of any court attempted to be created by what Is known as the Lusk act is void, the cause being the invalidity of that act. such void judgment cannot be made good by a retroactive enactment of the legislature.
 Very respectfully.
 Massey Wilson.
 Attorney General"
 The Eighth the Ninth and the Four teenth Judicial Circuits were well rep resented at the capitol yesterday. Rep resentatives of all these circuits saw the Governor and discussed the neces- sity of an extra session.
 From that part of the Eighth Judicial Circuit which was known for a short while as the Sixteenth Judicial Circuit came Hon. Erie Pettus who was soIici- tor and nominee for solicitor in the short lived Sixteenth Circuit.
 From the Fourteenth Circuit which is still in existence, but whose tenure of life is precarious came Sheriff Lacey, nominee for judge and R. L. Blanton, nominee for solicitor, and R. A. O'Rear. A mass meeting was held in Jasper Wednesday night and MT. O'Rear was requested to present the petition of the people there for an extra session to the Governor
 From the Eighth Judicial Circuit the representatives were w. W. Haralson and R. c. Hunt nominees respectively