(102 So.) sole, litigated material issue in the case under this plea. Neither the oral charge nor any one of the foregoing given written KYLE v. WIGGINS. (8 Div. 275.) (Court of Appeals of Alabama. Nov. 1, 1924.) 1. Statutes 96(1)-Act dividing county into school districts and providing for election of members of board of education from each held void local law. charges instructed the jury that the burden was on defendant to reasonably satisfy the jury by the evidence that the fire boss notified, in person, the decedent that morning in substance that "gas exists in dangerous quantities" in rooms 51 and 52. The different words used in the oral charge and in the foregoing given written charges, viz., "not to go into that mine or into that work place," or "if the mine was not right and they knew it," or "that there was gas in rooms 51 and 52," or "there was gas in the room where intestate had been working," or "told him not to do so," "not to enter the mine," are not the equivalent, in substance, of the words, viz., "gas exists in dangerous quantities,' as used in the plea and statute. Gas may exist in a room and still not be there in dangerous quantities. The trial court did not state clearly and correctly the issue and the burden of proof to the jury, as present-bers of Morgan county board of education from ed by the contributory negligence plea 3. Authorities supra. [27] Written charges requested by plaintiff, and refused by the court, numbered by us 1, 2, 3, and 4, were not improperly refused by the court, because the same rules of law at tempted to be declared, or that were declared, in each of them, were substantially and fairly given to the jury in the court's oral charge and in plaintiff's given charges, lettered by us C, D, and F. Section 5364, Code 1907, as amended by Acts 1915, p. 815, now section 9509, Code 1923. Local Acts 1923, p. 258, dividing Morgan county into five school districts (section 1), and providing for election of one member of board of education from each, is local law (Const. 1901, § 110), and void in its entirety, as contravening section 104, subd. 22, pursuant to which Legislature created boards of education of five members elected from counties at large (Gen. Acts 1919, p. 582, art. 5, §§ 1, 2), with power, under Code 1907, § 1691, to create and change boundaries of districts. (Response of Supreme Court to certified question.) 2. Schools and school districts 48 (1)—Nomination of candidates for county board of education by school districts void. Primary nomination of candidates for mem school districts in county, as provided by Loc. Acts 1923, p. 258, is void, though terms of two members of board are expiring, as such va cancies are to be filled under general law (Gen. Acts 1915, p. 281, § 2, and School Code 1919, p. 16, art. 5, § 2), by electors from county at large. Appeal from Circuit Court, Morgan County; James E. Horton, Jr., and O. Kyle, Judges. Petition of John T. Kyle for mandamus to M. D. Wiggins, as Chairman of the Democratic Executive Committee of Morgan County. From a judgment denying the writ, petitioner appeals. Affirmed. See, also, Kyle v. Wiggins, 102 So. 145. Wert & Hutson, of Decatur, for appellee. Many errors were assigned and argued, on motions to quash the venire, motions in arrest of judgment, based on the venire and the organization of the jury, and on the qualifications of the jurors, and on the introduc-W. Godbey, of Decatur, for appellant. tion and exclusion of evidence on these motions. This case must be reversed for the errors mentioned. These questions never arise again, as a new and different jury will try the case, and the motions may not be made, and the evidence in all or many respects will be different; so no necessity exists for us to discuss these rulings of the court. may There are other alleged errors assigned and argued; some grow out of rulings of the court on motion for new trial, and motions to exclude arguments to the jury. These matters, if they occur again, will no doubt be presented differently. We see no necessity for discussing and passing on them. For the errors mentioned, the judgment is reversed, and the cause remanded. Reversed and remanded. PER CURIAM. The petitioner, Kyle, filed his petition for mandamus, to compel the chairman of the Morgan County Democratic Executive Committee to certify to the judge of probate of Morgan county the fact of his nomination for the office of member of the board of education for said county. Upon the hearing of the petition the writ was denied, and petitioner appeals. One of the principal questions involved was the constitutionality of Local Act of the Legislature 1923, p. 258, and being of the opinion that such act was void, this court submitted the question to the Supreme Court, to which was returned the following response (per MILLER, J.): [I] "The foregoing question presents for consideration whether the act in Local Acts 1923, ANDERSON, C. J., and SAYRE and GARD- entitled an act 'to divide Morgan county into five NER, JJ., concur. school districts and to provide for the election For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes cases: 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 (22) Establishing separate "This act in Local Acts 1923 is a local law. It was intended to apply to only one county, and that is Morgan county, which it names. It is made to apply to a particular political subdivision of the state, less than the whole, which is named therein, so it can be identified, which makes it a local law. Section 110, Const. of 1901, and authorities cited in volume 1, Code 1923, p. 307. school districts.' "This local act in its title states its purpose in part is 'to divide Morgan county into five school districts'; and in its body states 'Morgan county is hereby divided into five school districts and then states the territory composing each district. The design of the act, as intended by the Legislature, which is apparent from its title and its body, was to establish five separate school districts in Morgan county, to provide for the election of a board of education of five members, to require one member thereof to be elected from each school district by the qualified electors of each of the respective school districts, and not by the qualified electors of the entire county and to fix their term of office, power and duties. This act did establish five separate school districts, named each school district, and described that part of the territory of the county embraced in the different school districts. This authority is specially denied the Legislature by the organic law of the state, as embraced in section 104, subd. 22, of the Constitution of 1901, quoted hereinbefore in this opinion. "This strikes from the act section 1, dividing the county into and establishing therein five separate school districts. This fractures the act so the legislative purpose cannot be performed in its entirety. This renders the ballance of the act incomplete in itself and incapable of being executed in accordance with the apparent legislative design. If there are no separate school districts established by the act, then there could be no election of members of the board of education from these districts; so the entire act must fall; and it is void under the section of the Constitution named. S. & N. Ala. R. R. Co. v. Morris, 65 Ala. 193, headnote 2; Noble v. Mitchell, 100 Ala. 519, 14 So. 581, 25 L. R. A. 238; Faust v. Mayor, etc., 83 Ala. 279, headnote 3, 3 So. 771; Wilkinson v. Stiles, 200 Ala. 279, 76 So. 45." [2] The primary election having been called for nomination of candidates for members of the board of education, as provided in the local act, supra, and not under the general law, there was no nomination of a candidate to fill a vacancy on the board of education. While it may be true that there is a term of one member of the board expiring (as is shown by the petition) whose successor is to be elected at the general election in 1924, under the general law this vacancy is to be filled by the voters of the entire county and not by those of a restricted territory. As a matter of fact, under the general law there are two members of the county board to be elected at the general election in 1924. See Gen. Acts 1915, p. 281, § 2; School Code Oct. "This section 104 of the Constitution expressly imposes the duty upon the Legislature 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 requirement of the Constitution. The Legislature by a general statute created a board of education in each county of the state, to be composed of five members, who shall be elected by the qualified electors of the respective counties. Sections 1 and 2, art. 5, act approved September 26, 1919, Gen. Acts 1919, p. 582. The right with the power to create new public school districts and to change the lines or boundaries of any school district heretofore established by a general or special law is conferred on and vested in the county boards of education by a general statute. Section 1691, Code 1907; State ex rel. Milan v. Masters, 207 Ala. 324, 93 So. 14. "This act of 1923 (Local Acts 1923, p. 258) is a local law; it establishes by section 1 five separate school districts in Morgan county, and are to be filled by the electors from the Affirmed. KYLE v. WIGGINS. (102 So.) (8 Div. 275.) (Supreme Court of Alabama. Nov. 1, 1924.) Statutes 96(1)—Act dividing county into school districts and providing for election of members of board of education from each held void local law. Local Acts 1923, p. 258, dividing Morgan county into five school districts (section 1), and providing for election of one member of board of education from each, is local law (Const. 1901, § 110), and void in its entirety, as contravening section 104, subd. 22, pursuant to which Legislature created boards of education of five members elected from counties at large (Gen. Acts 1919, p. 582, art. 5, § 1, 2), with power, under Code 1907, § 1691, to create and change boundaries or districts. Bouldin, J., dissenting. Certified Question from Court of Appeals. Petition by John T. Kyle for mandamus to M. D. Wiggins, as Chairman of the Democratic Executive Committee of Morgan County. From judgment denying writ, petitioner appeals. Question certified to Supreme Court by Court of Appeals (102 So. 143). Question answered. The Court of Appeals certifies to the Supreme Court the following inquiry, under section 2 of Gen. Acts 1911, p. 96: "To the Hon. John C. Anderson, Chief Justice, and the Associate Justices of the Supreme Court of Alabama: In the opinion of the Court of Appeals, the local act of the Legislature of Alabama, as shown in Local Acts 1923, p. 258, is void as being in violation of section 104, subsection 22, of the Constitution of 1901. The foregoing act being decisive of the appeal in the above-styled cause now pending in this court, the question is certified to your court for deci sion. "C. R. Bricken, Presiding Judge. "Wm. H. Samford, Associate Judge. "Henry B. Foster, Associate Judge." Sample & Kilpatrick, of Hartsells, and E. W. Godbey, of Decatur, for appellant. Wert & Hutson, of Decatur, for appellee. MILLER, J. The foregoing question presents for consideration whether the act in Locals Acts 1923, entitled an act "to divide Morgan county into five school districts and to provide for the election of a board of education for Morgan county and to prescribe their term of office, power and duties and to provide that one member of said board shall be elected from each school district," contravenes that part of section 104 of the Constitution of 1901 which reads as follows: "The Legislature shall not pass a special, private or local law in any of the following cas(22) Establishing separate school es: districts." * This act in Local Acts 1923 is a local law. It was intended to apply to only one county, and that is Morgan county, which it names. It is made to apply to a particular political subdivision of the state, less than the whole, which is named therein, so it can be identified, which makes it a local law. Section 110, Const. of 1901, and authorities cited in volume 1, Code 1923, p. 307. This local act in its title states its purpose, in part, is "to divide Morgan county into five school districts"; and in its body states "Morgan county is hereby divided into five school districts," and then states the territory composing each district. The design of the act, as intended by the Legislature, which is apparent from its title and its body, was to establish five separate school districts in Morgan county, to provide for the election of a board of education of five members, to require one member thereof to be elected from each school district by the qualified electors of each of the respective school districts, and not by the qualified electors of the entire county, and to fix their term of office, power, and duties. This act did establish five separate school districts, named each school district, and described that part of the territory of the county embraced in the different school districts. This authority is especially denied the Legislature by the organic law of the the state, as embraced in section 104, subd. 22, of the Constitution of 1901, quoted hereinbefore in this opinion. This section 104 of the Constitution expressly imposes the duty upon the Legislature to pass general laws under and by which separate school districts may be established. The Legislature performed this duty and met this requirement of the Constitution. The Legislature by a general statute created a board of education in each county of the state, to be composed of five members, who shall be elected by the qualified electors of the respective counties. Sections 1 and 2, art. 5, act approved September 26, 1919, Gen. Acts 1919, p. 582. The right with the power to create new public school districts and to change the lines or boundaries of any school district heretofore established by a general or special law is conferred on and vested in the county boards of education by a general statute. Section 1691, Code 1907; State ex rel. Milan v. Masters, 207 Ala. 324, 93 So. 14. This act of 1923 (Local Acts 1923, p. 258) is a local law; it establishes by section 1 five separate school districts in Morgan county, and that part of it is inoperative and void, and it violates section 104, subd. 22, of the Constitution of 1901 of Alabama. Separate school districts in this state must be estab lished in the different counties, not by the Legislature, but under the general law, by the boards of education of the respective counties. Authorities, supra. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 102 SO.-10 This strikes from the act section 1, dividing the county into and establishing therein five separate school districts. This fractures the act so the legislative purpose cannot be performed in its entirety. This renders the balance of the act incomplete in itself and incapable of being executed in accordance with the apparent legislative design. If there are no separate school districts established by the act, then there could be no election of members of the board of education from these districts; so the entire act must fall; and it is void under the section of the Constitution named. S. & N. Ala. R. R. Co. v. Morris, 65 Ala. 193, headnote 2; Noble v. Mitchell, 100 Ala. 519, 14 So. 581, 25 L. R. A. 238; Faust v. Mayor, etc., 83 Ala. 279, headnote, 3, 3 So. 771; Wilkinson v. Stiles, 200 Ala. 279, 76 So. 45. Let this be certified to the Court of Appeals. ANDERSON, C. J., and SAYRE, SOMERVILLE, GARDNER, and THOMAS, JJ., con cur. BOULDIN, J., dissents. FREDERICK v. STATE. (2 Div. 306.) (Court of Appeals of Alabama. Sept. 2, 1924. Rehearing Denied Oct. 28, 1924.) 1. Intoxicating liquors 236 (62) -Evidence held insufficient to convict of possession. The finding of large quantity of whisky on land occupied by accused and others held insufficient evidence to support conviction of possession. 2. Constitutional law 266-Due process precludes conviction, unless state meets burden of proof. The due process provision of Const. 1991, 86, negatives the right of judge or jury to convict for any crime until state has made out its case beyond all reasonable doubt and to a moral certainty. 3. Criminal law 991(2)-Judgment of conviction and sentence of accused held erroneous in form and substance. Judgment of conviction and sentence of accused held erroneous in form and substance, under Code 1907, § 7634. Appeal from Circuit Court, Bibb County; S. F. Hobbs, Judge. Ed. Frederick was convicted of violating the prohibition law, and he appeals. versed and remanded. Re Certiorari denied by the Supreme Court in Ex parte State ex rel. Atty. Gen. (Frederick v. State), 102 So. 147. defendant in his own proper person, and is $500, together with all the cost of this prosecution; and the defendant failing to pay said fine of $500 and the cost of this prosecution, he is sentenced by the court to perform hard labor payment of the fine. It is further considered of Bibb county for six months in lieu of the by the court, and it is the judgment of the court, that the state of Alabama for the use of Bibb county have and recover of the defendant the said sum of $500 together with all the cost of this prosecution for which let execution issue." Frank Head, of Centerville, for appellant. Harwell G. Davis, Atty. Gen., and O. B. Cornelius and Lamar Field, Asst. Attys. Gen., for the State. BRICKEN, P. J. [1, 2] This cause was tried by judge of the court without the intervention of a jury. The appellant was convicted under an indictment charging him with the unlawful possession of spirituous, vinous, or malt liquors, and appealed. The undisputed evidence in this case tended 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 was in this inclosure. By witness Dave Mooreland, who actually stepped the distance, it was shown that the "cane patch" where the whisky was found buried or hidden was 409 steps from defendant's house. And by state witness Roby it was shown that "a road went around on the other side all the way round." The testimony showed that a path led from defendant's gate to the cane patch, and on through it to a negro's house some distance away. It was shown without conflict that the inclosure in question, within which the whisky was alleged to have been found, was occupied and in the possession of several other parties besides the defendant, and that the land in said inclosure was being cultivated at that time by numerous parties. Without conflict also it was shown by two or three witnesses that the cane patch where the whisky was found belonged to one George Burke, and not to the defendant; that the cane patch had been planted by said Burke, and had been cultivated for said Burke by witness John Burnett. At the time the whisky was found and destroyed the defendant was not at home, and the only incriminating fact, if such it can be termed, against this defendant was the fact that his house where he lived was with in the large inclosure where the whisky was The minute entry as shown by the record whisky in question, and to hold the defend is, in part, as follows: "This day came the state of Alabama by its solicitor, J. H. James, and also came the ant to be guilty under such evidence resort to guesswork or conjecture of necessity must be indulged, for the facts adduced do not ev (102 So.) en rise to the dignity of a suspicion that he was in possession of said whisky. The cane patch was far distant from defendant's home. The cane patch did not belong to defendant, nor did he exercise any dominion or control over it, nor was it shown by any of the evidence that he had ever entered or been near the cane patch in question. To convict this defendant of the unlawful possession 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 was guilty as charged beyond all reasonable doubt and to a moral certainty. This bur- (Court of Appeals of Alabama. Aug. 19, 1924. den the state failed to meet, and the evidence adduced was not sufficient to overcome the presumption of innocence which attended the accused upon this trial. For illustration, had a man been foully murdered and his body found in said cane patch under the conditions detailed here, would the court sustain a verdict for murder against this defendant because of that fact alone, and without more? We think not, and, if such action were taken, the prejudicial error in so doing could not be sustained. Rehearing Denied Oct. 7, 1924.) 1. Witnesses 370 (1)-Schoolboy fights between defendant and state's witness held too remote on which to base ill feeling and prejudice. That defendant and state's witness, while school boys, had many fights in which defendant conquered, held too remote on which to base ill feeling and prejudice, in absence of facts showing continuance of such differences. 2. Witnesses 374(1)-Details of schoolboy fights between defendant and state's witness inadmissible. Details of difficulties between defendant and state's witness held inadmissible to show ill feeling and prejudice. 3. Criminal law 1168(1)-Witness' right to fee as deputy not prejudicial to defendant. This court has many times announced that the same rules of evidence and procedure obtain in prosecutions for a violation of the laws enacted for the suppression of the evils of intemperance, as in all other criminal prosecutions, and until the state makes out its case 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 vict, 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 alshall not be deprived of life, liber-leged manufacture of whisky. ty, or property, except by due process of law. Const. 1901, § 6. [3] The judgment of conviction, also the sentence of the defendant, as they appear in this record, are erroneous in form and substance. Section 7634, Code 1907. For the errors designated the cause is reversed and remanded. Reversed and remanded. Appeal from Circuit Court, Dale County; J. S. Williams, Judge. Seab Blackman was convicted of manufacturing whisky, and he appeals. Affirmed. Certiorari denied by Supreme Court in Ex parte Blackman, 102 So. 148. 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 school ERAL. FREDERICK v. STATE. (2 Div. 858.) boys they had lots of fights, and defendant "sort of" got the better of witness, is too remote upon which to base ill feeling and prejudice, 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. Harwell G. Davis, Atty. Gen., for petitioner. would be inadmissible. who was a witness examined by the state, [3] The fact that McGowan, the deputy, 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 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |