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(102 So.)

sole, litigated material issue in the case under this plea. Neither the oral charge nor KYLE V. WIGGINS. (8 Div, 275.) any one of the foregoing given written charges instructed the jury that the burden (Court of Appeals of Alabama. Nov. 1, 1924.) was on defendant to reasonably satisfy the I. Statutes C96(1)-Act dividing county into jury by the evidence that the fire boss noti school districts and providing for election of fied, in person, the decedent that morning in members of board of education from each substance that "gas exists in dangerous

held void local law. quantities" in rooms 51 and 52. The differ Local Acts 1923, p. 258, dividing Morgan ent words used in the oral charge and in the county into five school districts (section 1), foregoing given written charges, viz., "not to board of education from each, is local law

and providing for election of one member of go into that mine or into that work place," (Const. 1901, § 110), and void in its entirety, or "if the mine was not right and they knew

as contravening section 104, subd. 22, pursuant it," or "that there was gas in rooms 51 and to which Legislature created boards of educa52," or "there was gas in the room where tion of five members elected from counties at intestate had been working," or "told him not large (Gen. Acts 1919, p. 582, art. 5, $S 1, 2), to do so," "not to enter the mine,” are not with power, under Code 1907, § 1691, to create the equivalent, in substance, of the words, and change boundaries of districts. (Response viz., “gas exists in dangerous quantities,” of Supreme Court to certified question.) as used in the plea and statute. Gas may 2. Schools and school districts 48(1)-Nomexist in a room and still not be there in ination of candidates for county board of dangerous quantities. The trial court did education by school districts void. not state clearly and correctly the issue and Primary nomination of candidates for memthe burden of proof to the jury, as present-bers of Morgan county board of education from ed by the contributory negligence plea 3. Au- school districts in county, as provided by Loc. thorities supra.

Acts 1923, p. 258, is void, though terms of [27] Written charges requested by plaintiff, cancies are to be filled under general law (Gen.

two members of board are expiring, as such vaand refused by the court, numbered by us 1, Acts 1915, p. 281, § 2, and School Code 1919, 2, 3, and 4, were not improperly refused by p. 16, art. 5, § 2), by electors from county at the court, because the same rules of law at large. tempted to be declared, or that were declared, in each of them, were substantially and Appeal from Circuit Court, Morgan Counfairly given to the jury in the court's oral ty; James E. Horton, Jr., and 0. Kyle, Judges. charge and in plaintiff's given charges, lettered by us C, D, and F. Section 5364, Code

Petition of John T. Kyle for mandamus to

M. D. Wiggins, as Chairman of the Demo1907, as amended by Acts 1915, p. 815, now

cratic Executive Committee of Morgan Counsection 9509, Code 1923. Many errors were assigned and argued, ty. From a judgment denying the writ, pe

titioner appeals. Affirmed. on motions to quash the venire, motions in

See, also, Kyle v. Wiggins, 102 So. 145. arrest of judgment, based on the venire and the organization of the jury, and on the qual Sample & Kilpatrick, of Hartsells, and E. itications of the jurors, and on the introduc- W. Godbey, of Decatur, for appellant. tion and exclusion of evidence on these mo Wert & Hutson, of Decatur, for appellee. tions. This case must be reversed for the errors mentioned. These questions may

PER CURIAM. The petitioner, Kyle, filed never arise again, as a new and different his petition for mandamus, to compel the jury will try the case, and the motions may chairman of the Morgan County Democratic not be made, and the evidence in all or many Executive Committee to certify to the judge respects will be different; so no necessity of probate of Morgan county the fact of his exists for us to discuss these rulings of the nomination for the office of member of the

board of education for said county. Upon There are other alleged errors assigned and the hearing of the petition the writ was deargued; some grow out of rulings of the nied, and petitioner appeals. court on motion for new trial, and motions

One of the principal questions involved to exclude arguments to the jury. These mat- was the constitutionality of Local Act of the ters, if they occur again, will no doubt be Legislature 1923, p. 258, and being of the presented differently. We see no necessity opinion that such act was void, this court for discussing and passing on them.

submitted the question to the Supreme Court, For the errors mentioned, the judgment is to which was returned the following rereversed, and the cause remanded.

sponse (per MILLER, J.): Reversed and remanded.

[1] "The foregoing question presents for con

sideration whether the act in Local Acts 1923, ANDERSON, C. J., and SAYRE and GARD- entitled an act 'to divide Morgan county into five

school districts and to provide for the election

court.

NER, JJ.,

concur.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

1

of a board of education for Morgan county and that part of it is inoperative and void, and it to prescribe their term of office, power and violates section 104, subd. 22, of the Constituduties and to provide that one member of said tion of 1901 of Alabama. Separate school disboard shall be elected from each school districts in this state must be established in the trict,' contravenes that part of section 104 of different counties, not by Legislature, but under the Constitution of 1901 which reads as fol- the general law, by the boards of education of lows: "The Legislature shall not pass a special, the respective counties. Authorities, supra. private or local law in any of the following “This strikes from the act section 1, dividcases:

(22) Establishing separate ing the county into and establishing therein five school districts.'

separate school districts. This fractures the “This act in Local Acts 1923 is a local law. act so the legislative purpose cannot be per. It was intended to apply to only one county, formed in its entirety. This renders the baland that is Morgan county, which it names. It lance of the act incomplete in itself and inis made to apply to a particular political sub-capable of being executed in accordance with division of the state, less than the whole, which the apparent legislative design. If there are is named therein, so it can be identified, which no separate school districts established by the makes it a local law. Section 110, Const. of act, then there could be no election of members 1901, and authorities cited in volume 1, Code of the board of education from these districts; 1923, p. 307.

so the entire act must fall; and it is void under "This local act in its title states its purpose the section of the Constitution named. S. & N. in part is 'to divide Morgan county into five Ala. R. R. Co. v. Morris, 65 Ala. 193, headnote school districts'; and in its body states Morgan 2; Noble v. Mitchell, 100 Ala. 519, 14 So. 581, county is hereby divided into five school dis- 25 L. R. A. 238; Faust v. Mayor, etc., 83 Ala. tricts' and then states the territory composing | 279, headnote 3, 3 So. 771; Wilkinson v. Stiles, each district. The design of the act, as intend-200 Ala. 279, 76 So. 45." ed by the Legislature, which is apparent from its title and its body, was to establish five separate school districts in Morgan county, to pro- for nomination of candidates for members

[2] The primary election having been called vide for the election of a board of education of five members, to require one member thereof of the board of education, as provided in the to be elected from each school district by the local act, supra, and not under the general qualified electors of each of the respective law, there was no nomination of a candidate school districts, and not by the qualified elec- to fill a vacancy on the board of education. tors of the entire county and to fix their term While it may be true that there is a term of office, power and duties. This act did estab- of one member of the board expiring (as is lish five separate school districts, named each school district, and described that part of the shown by the petition) whose successor is to territory of the county embraced in the differ- be elected at the general election in 1924, ent school districts. This authority is specially under the general law this vacancy is to be denied the Legislature by the organic law of filled by the voters of the entire county and the state, as embraced in section 104, subd. 22, not by those of a restricted territory. As of the Constitution of 1901, quoted hereinbe- a matter of fact, under the general law there fore in this opinion.

are two members of the county board to be “This section 104 of the Constitution ex- elected at the general election in 1924. See pressly imposes the duty upon the Legislature Gen. Acts 1915, P. 281, 8 2; School Code Oct. to pass general laws under and by which separate school districts may be established. The 1, 1919, p. 16, art. 5, § 1. These vacancies Legislature performed this duty and met this are to be filled by the electors from the requirement of the Constitution. The Legisla- county at large and not in restricted dis. ture by a general statute created a board of tricts, as appears from the limitations on the education in each county of the state, to be ballots used under authority of the execucomposed of five members, who shall be elected tive committee. It will be seen that the by the qualified electors of the respective coun- limitations on the ballots, used in the prities. Sections 1 and 2, art. 5, act approved September 26, 1919, Gen. Acts 1919, p. 582. mary election referred to in the petition, The right with the power to create new public failed to extend this privilege to the electors school districts and to change the lines or for the county at large, resulting in the selecboundaries of any school district heretofore tion of candidates for offices in a manner not established by a general or special law is con- authorized by law. The local act being void, ferred on and vested in the county boards of it follows that the primary election undereducation by a general statute. Section 1691, taking to select candidates for the offices as Code 1907; State ex rel. Milan v. Masters, 207 provided in the void act is void and no nomiAla. 324, 93 So. 14. “This act of 1923 (Local Acts 1923, p. 258) nation resulted therefrom.

Let the judg. is a local law; it establishes by section 1 five ment be affirmed. separate school districts in Morgan county, and Affirmed.

(102 So.)

This act in Local Acts 1923 is a local law. ! KYLE Y. WIGGINS. (8 Div. 275.) It was intended to apply to only one county, (Supreme Court of Alabama. Nov. 1, 1924.) It is made to apply to a particular political

and that is Morgan county, which it names. Statutes Cm96(1)-Act dividing county into subdivision of the state, less than the whole, school districts and providing for election of which is named therein, so it can be identimembers of board of education from each fied, which makes it a local law. Section held void local law,

110, Const, of 1901, and authorities cited in Local Acts 1923, p. 258, dividing Morgan volume 1, Code 1923, p. 307. county into five school districts (section 1), This local act in its title states its purpose, and providing for election of one member of in part, is “to divide Morgan county into five board of education from each, is local law school districts"; and in its body states (Const. 1901, § 110), and void in its entirety, "Morgan county is hereby divided into five as contravening section 104, subd. 22, pursu: school districts," and then states the terriant to which Legislature created boards of education of five members elected from coun

tory composing each district. The design of ties at large (Gen. Acts 1919, p. 582, art. 5, the act, as intended by the Legislature, which $1, 2), with power, under Code 1907, § 1691, is apparent from its title and its body, was to create and change boundaries or districts. to establish five separate school districts in Bouldin, J., dissenting.

Morgan county, to provide for the election of

a board of education of five members, to reCertified Question from Court of Appeals. quire one member thereof to be elected from

each school district by the qualified electors Petition by John T. Kyle for mandamus to of each of the respective school districts, and M. D. Wiggins, as Chairman of the Demo- not by the qualified electors of the entire cratic Executive Committee of Morgan Coun- county, and to fix their term of office, power, ty. From judgment denying writ, petition- and duties. This act did establish five seper appeals. Question certified to Supreme arate school districts, named each school disCourt by Court of Appeals (102 So. 143). trict, and described that part of the territory Question answered.

of the county embraced in the different school The Court of Appeals certifies to the Su- districts. This authority is especially denied preme Court the following inquiry, under sec- the Legislature by the organic law of the tion 2 of Gen. Acts 1911, p. 96:

the state, as embraced in section 104, subd. 22,

of the Constitution of 1901, quoted herein"To the Hon. John C. Anderson, Chief Jus

before in this opinion. tice, and the Associate Justices of the Supreme Court of Alabama: In the opinion of the Court

This section 104 of the Constitution ex. of Appeals, the local act of the Legislature of pressly imposes the duty upon the LegislaAlabama, as shown in Local Acts 1923, p. 258, ture to pass general laws under and by which is void as being in violation of section 104, sub- separate school districts may be established. section 22, of the Constitution of 1901. The The Legislature performed this duty and met foregoing act being decisive of the appeal in the this requirement of the Constitution. above-styled cause now pending in this court, the question is certified to your court for deci- Legislature by a general statute created a

board of education in each county of the "C. R. Bricken, Presiding Judge. state, to be composed of five members, who "Wm. H. Samford, Associate Judge.

shall be elected by the qualified electors of "Henry B. Foster, Associate Judge.” the respective counties. Sections 1 and 2, art.

5, act approved September 26, 1919, Gen. Sample & Kilpatrick, of Hartsells, and E. Acts 1919, p. 582. The right with the power W. Godbey, of Decatur, for appellant. to create new public school districts and to Wert & Hutson, of Decatur, for appellee. change the lines or boundaries of any school

district heretofore established by a general MILLER, J. The foregoing question pre- or special law is conferred on and vested in sents for consideration whether the act in the county boards of education by a general Locals Acts 1923, entitled an act “to divide statute. Section 1691, Code 1907; State ex Morgan county into five school districts and rel. Milan v. Masters, 207 Ala. 324, 93 So. 14. to provide for the election of a board of edu

This act of 1923 (Local Acts 1923, p. 258) cation for Morgan county and to prescribe is a local law; it establishes by section 1 five their term of office, power and duties and to separate school districts in Morgan county, provide that one member of said board shall and that part of it is inoperative and void, be elected from each school district,” con- and it violates section 104, subd. 22, of the trafenes that part of section 104 of the Con- Constitution of 1901 of Alabama. Separate stitution of 1901 which reads as follows:

school districts in this state must be estabThe Legislature shall not pass a special, pri- lished in the different counties, not by the vate or local law in any of the following cas- Legislature, but under the general law, by es:

(22) Establishing separate school the boards of education of the respective districts."

counties. Authorities, supra. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 102 10.-10

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This strikes from the act section 1, divid-, defendant in his own proper person, and is ing the county into and establishing therein $500, together with all the cost of this prosefive separate school districts. This frac-cution; and the defendant failing to pay said tures the act so the legislative purpose can- fine of $500 and the cost of this prosecution, he

is sentenced by the court to perform hard labor not be performed in its entirety. This ren

of Bibb county for six months in lieu of the ders the balance of the act incomplete in it- payment of the fine. It is further considered self and incapable of being executed in ac- by the court, and it is the judgment of the cordance with the apparent legislative de- court, that the state of Alabama for the use sign. If there are no separate school dis- of Bibb county have and recover of the defendtricts established by the act, then there could ant the said sum of $500 together with all the be no election of members of the board of ed. cost of this prosecution for which let execution ucation from these districts; so the entire

issue." act must fall; and it is void under the sec Frank Head, of Centerville, for appellant. tion of the Constitution named. S. & N. Ala.

Harwell G. Davis, Atty. Gen., and 0. B. R. R. Co. v. Morris, 65 Ala. 193, headnote Cornelius and Lamar Field, Asst. Attys. Gen., 2; Noble v. Mitchell, 100 Ala. 519, 14 So. 581, for the State. 25 L. R. A. 238; Faust v. Mayor, etc., 83 Ala. 279, headnote, 3, 3 So. 771; Wilkinson v. BRICKEN, P. J. [1, 2] This cause was Stiles, 200 Ala. 279, 76 So. 45.

tried by judge of the court without the interLet this be certified to the Court of Appeals. vention of a jury. The appellant was conANDERSON, C. J., and SAYRE, SOMER- with the unlawful possession of spirituous,

victed under an indictment charging him VILLE, GARDNER, and THOMAS, JJ., con vinous, or malt liquors, and appealed.

The undisputed evidence in this case tendBOULDIN, J., dissents.

ed to show that the searching officers found and destroyed a large quantity of corn whisky in an inclosure.containing 200 or 300

acres of land, and that the defendant's house FREDERICK V. STATE. (2 Div. 306.)

was in this inclosure. By witness Dave

Mooreland, who actually stepped the dis(Court of Appeals of Alabama. Sept. 2, 1924. tance, it was shown that the "cane patch"

Rehearing Denied Oct. 28, 1924.) where the whisky was found buried or hid1. Intoxicating liquors On236(6/2)-Evidence

den was 409 steps from defendant's house. held insufficient to convict of possession.

And by state witness Roby it was shown that The finding of large quantity of whisky a road went around on the other side all on land occupied by accused and others held the way round.” The testimony showed insufficient evidence to support conviction of that a path led from defendant's gate to the possession.

cane patch, and on through it to a negro's

house some distance away. It was shown 2. Constitutional law Q266-Due

process precludes conviction, unless state meets bure without conflict that the inclosure in quesden of proof.

tion, within which the whisky was alleged The due process provision of Const. 1991, to have been found, was occupied and in the $ 6, negatives the right of judge or jury to con- | possession of several other parties besides vict for any crime until state has made out its the defendant, and that the land in said incase beyond all reasonable doubt and to a closure was being cultivated at that time moral certainty.

by numerous parties. Without conflict also 3. Criminal law Can 991 (12)-Judgment of con

it was shown by two or three witnesses that viction and sentence of accused held errone

the cane patch where the whisky was found ous in form and substance,

belonged to one George Burke, and not to the Judgment of conviction and sentence of ac- | defendant; that the cane patch had been cused held erroneous in form and substance, planted by said Burke, and had been cultiunder Code 1907, § 7634.

vated for said Burke by witness John Burn

ett. Appeal from Circuit Court, Bibb County; At the time the whisky was found and deS. F. Hobbs, Judge.

stroyed the defendant was not at home, and Ed. Frederick was convicted of violating the only incriminating fact, if such it can the prohibition law, and he appeals. Re

be termed, against this defendant was the versed and remanded.

fact that his house where he lived was withCertiorari denied by the Supreme Court in in the large inclosure where the whisky was Ex parte State ex rel. Atty. Gen. (Freder- found. There appears from the evidence no ick v. State), 102 So. 147.

other factor circumstance tending to show

any connection of the defendant with the The minute entry as shown by the record whisky in question, and to hold the defendis, in part, as follows:

ant to be guilty under such evidence resort “This day came the state of Alabama by its to guesswork or conjecture of necessity must solicitor, J. H. James, and also came the be indulged, for the facts adduced do not ev

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexen

(102 80.) en rise to the dignity of a suspicion that he , peals, and, the judgment of conviction being was in possession of said whisky. The cane there reversed, the state, on the relation of its patch was far distant from defendant's Attorney General, petitions for certiorari to the home. The cane patch' did not belong to de- Court of Appeals to review and revise the judgfendant, nor did he exercise any dominion ment and decision there rendered in the case or control over it, nor was it shown by any styled Frederick v. State, 102 So. 146.

Writ denied, of the evidence that he had ever entered or been near the cane patch in question. To convict this defendant of the unlawful pos- LER, JJ., concur.

ANDERSON, C. J., and SAYRE and MILsession of the liquor in question under these facts would be the usurpation of judicial authority not conferred by law.' The measure of proof necessary and the burden resting upon the state was to show by the evidence, and the evidence alone, that the defendant BLACKMAN v. STATE. (4 Div. 996.) was guilty as charged beyond all reasonable (Court of Appeals of Alabama. Aug. 19, 1924. doubt and to a moral certainty. This bur

Rehearing Denied Oct. 7, 1924.) den the state failed to meet, and the evidence adduced was not sufficient to overcome the 1. Witnesses On370(1)-Schoolboy fights bepresumption of innocence which attended tween defendant and state's witness held too the accused upon this trial. For illustration,

remote on which to base ill feeling and preju.

dice, had a man been foully murdered and his body found in said cane patch under the con That defendant and state's witness, while ditions detailed here, would the court sustain school boys, had many fights in which defenda verdict for murder against this defendant ant conquered, held too remote on which to base because of that fact alone, and without ill feeling and prejudice, in absence of facts

showing continuance of such differences, more? We think not, and, if such action were taken, the prejudicial error in so do- 2. Witnesses Ew374(1)-Details of schoolboy ing could not be sustained.

fights between defendant and state's witness This court has many times announced that inadmissible. the same rules of evidence and procedure ob

Details of difficulties between defendant and tain in prosecutions for a violation of the state's witness held inadmissible to show ill laws enacted for the suppression of the evils feeling and prejudice. of intemperance, as in all other criminal pros- 3. Criminal law Om 1168(1)-Witness' right to ecutions, and until the state makes out its case

fee as deputy not prejudicial to defendant, by meeting the burden resting upon it courts

That deputy examined by state was entitled or juries have no right or authority to con- to $50 fee in case could not have injuriously víct, for the fundamental law of the land is affected defendant's case, where he testified to that in all criminal prosecutions the accused no fact tending to connect defendant with al

* shall not be deprived of life, liber- leged manufacture of whisky. ty, or property, except by due process of law. Const. 1901, 8 6.

Appeal from Circuit Court, Dale County; [3] The judgment of conviction, also the J. S. Williams, Judge. sentence of the defendant, as they appear in

Seab Blackman was convicted of manufacthis record, are erroneous in form and sub

turing whisky, and he appeals. Affirmed. stance. Section 7634, Code 1907.

Certiorari denied by Supreme Court in Ex For the errors designated the cause is re

parte Blackman, 102 So. 148. versed and remanded. Reversed and remanded.

Sollie & Sollie, of Ozark, for appellant.

Harwell G. Davis, Atty. Gen., and O. B. Cornelius, Asst. Atty. Gen., for the State.

SAMFORD, J. [1, 2] The fact that when Ex parte STATE ex rel. ATTORNEY GEN. defendant and state's witness were schoolERAL.

boys they had lots of fights, and defendant

"sort of” got the better of witness, is too reFREDERICK v. STATE.

mote upon which to base ill feeling and prej(2 Div. 858.)

udice, unless there were connecting facts

showing a continuance of the youthful dif. (Supreme Court of Alabama. Nov. 20, 1924.) | ferences. Besides, the details of such fights Certiorari to Court of Appeals.

would be inadmissible.

[3] The fact that McGowan, the deputy, Harwell G. Davis, Atty. Gen., for petitioner. who was a witness examined by the state, Frank Head, of Centerville, opposed.

was or was not entitled to a fee of $50 in GARDNER, J. Ed. Frederick was convicted this case could not have injuriously affected of an offense, and appealed to the Court of Ap- defendant's case. This witness did not tes.

em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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