|Publisher:||The Birmingham News|
|Place of publication:||Birmingham, AL|
|Date of publication:||5/7/1904|
Special to the Birmingham News.
MONTGOMERY, Ala., May 7. – In addition to the letters sent to circuit judges, Acting Governor Cunningham has sent letters to Judge W. S. Anderson and Judge T. S. Sayre:
The letter addressed by the governor to Judge Anderson bearing the substance of Attorney General Wilson’s opinion is as follows:
“Montgomery, Ala., May 6, 1904.
“Hon. W. S. Anderson, Judge of the Thirteenth Judicial Circuit, Mobile, Alabama:
“My Dear Sir – Supplementing the letter from this office under date of the 30th ult., in reference to the recent lynching of Reuben Sims in Baldwin county, in which you were advised that inasmuch as the constitutionality of section 5 of the act:
” ‘To provide for the holding of circuit and chancery courts when the judges or chancellors thereof fail to attend regular terms by a supernumerary judge and to prescribe his powers, duties and pay, and to provide for the election of such judge, approved February 20, 1899, which gives the governor the authority to order and direct any circuit judge to order and hold an adjourned term or special term of the circuit court, had been raised, the question would be referred to the attorney general, the governor now quotes from the opinion of that officer as follows:
” ‘Complying with your request I have examined Section 5 of the act to ‘provide for the holding of circuit and chancery courts when the judges or chancellors thereof fail to attend regular terms, by a supernumerary judge, and to prescribe his powers, duties and pay, and to provide for the election for such judge,’ approved February 20th, 1899, (Acts of Alabama, 1898-99, page 236). The section of the act referred to directs the governor, whenever in his opinion the due administration of the law requires it, to order any circuit judge to hold an adjourned or special term of his court. The title of the act indicated that its purpose is to provide for holding regular terms of courts when the judges thereof fail to attend such regular terms. The title contains no intimation that the act will make provision for the governor to order circuit judges to hold special terms of their courts whenever he thinks proper. Neither is such provision cognate or referable to the general purpose expressed in the title. This part of the act under consideration is offensive to the constitutional clause that each law shall contain but one subject which shall be clearly expressed in its title (Constitution, Section 45). The cases in support of this proposition are so numerous and so generally understood I deem it unnecessary to cite them.
” ‘It may be questionable whether this provision would be valid, even if not subject to the infirmity pointed out. The constitution commits the judicial powers of the state to the judiciary, and it may be the Legislature cannot give the governor the power attempted to be conferred by Sectoin 5 of this act. (Constitution, Sections 42 and 43). No opinion however, is expressed upon this point.
” ‘Section 5 of the act may be struck out for the reason above indicated without invalidating the other parts of the act. After eliminating section of the act. After eliminating section 5, a complete and harmonious enactment is left, capable of enforcement.’
“While the governor was entirely familiar with this act he is none the less obliged to you for bringing it to his attention, with the statement that if he sees proper to make such an order that you will most cheerfully obey the same. Inasmuch, however, as he concurs in the opinion of the attorney-general of the state that no such authority is vested in the governor he can only request, as he now does, that you exercise the authority committed to you and about which there can be no question, and hold the court.
“If you will do so, please let him know in time to have the supernumerary judge relieve you of your regular court at Mobile.
“Very truly yours,
“J. K. Jackson,
“Urges Judges To Convene Courts; Acting Governor Cunningham Addresses Special Letters To Judges Anderson And Sayre.” The Birmingham News (Birmingham, AL), May 7, 1904.