Ex Parte Foshee

21 So. 2d 827, 246 Ala. 604, 1945 Ala. LEXIS 298

• Court: Supreme Court of Alabama
• Decided: January 25, 1945
• Docket: 5 Div. 398.
• Status: Published

Opinions

FOSTER, Justice.

Rule 56 of Equity Practice, Code 1940, Tit. 7 Appendix, is a combination of sections 6574 and 6575 of the Code of 1923, with minor additions regulating trial practice in equity in respect to the introduction of evidence on the trial. Section 289, Title 7, Code of 1940, is a legislative recognition of the equity rules adopted by this ■Court, authorized not only by Special Act •of June 15, 1935, page 177, but by Code of 1923, section 6663 and § 10276(4), Code 1940, Tit. 13, § 17, in effect when the equity rules were adopted and became effective January 1, 1940. The Code of 1940 went into effect May 31, 1941.

Although not material for present pur■poses, we note that Rule 56 was not an ■original creature of this Court, but was taken from the Code of 1923, and recognized by section 289, Title 7, Code of 1940. Therefore, said rule is of legislative origin rather than the product of an exercise of judicial power. The Act of May 21, 1943, page 28, purports to amend this rule and at the same term the legislature also amended Rules 51 and 52 by an Act of July 10, 1943, page 405, and amended Rule 55 by another Act of July 10, 1943, page 406. The concrete question now presented for decision is whether such- amendment of Rule 56 was within legislative competency.

It has been the recognized doctrine in this State that a legislative enactment takes precedence over a rule of the Court. Nichols v. Dill, 222 Ala. 455, 132 So. 900; Williams v. Knight, 233 Ala. 42(5), 169 So. 871; Porter v. State, 234 Ala. 11, 174 So. 311; 21 Corpus Juris Secundum, Courts, § 176, p. 276 et seq.; 14 Amer. Jur. 347; 21 Corpus Juris Secundum, Courts, § 179, subsec. b, p. 288.

But there have been efforts to hamper the orderly functioning of this Court, which have been repudiated. Hackett v. Cash, 196 Ala. 403, 72 So. 52; Halle v. Brooks, 209 Ala. 486, 96 So. 341; Thornhill v. Gulf Coast Produce Exch., 219 Ala. 251, 121 So. 912; Buttrey v. Buttrey, 218 Ala. 268, 118 So. 282.

To make a rule for an inferior court this Court must have authority conferred either by the Constitution or by statute. 21 Corpus Juris Secundum, Courts, § 170, p. 264; State v. Roy, 40 N. M. 397, 60 P.2d 646, 110 A.L.R. 1.

Our Constitution, section 140, gives this Court superintendence and control of inferior jurisdictions, and that includes by implication the power to make rules, and it is therefore sometimes said to be an inherent power. 21 Corpus Juris Secundum, Courts, § 170, p. 264; State v. Roy, 40 N. M. 397, 60 P.2d 646, 110 A.L.R. 1.

But the Constitution confers on the legislature plenary power to legislate except as restricted by the Constitution, State or federal. Section 44, Const.; Sisk v. Cargile, 138 Ala. 164, 172, 35 So. 114. This includes the power to prescribe rules of practice and procedure in the courts of the State. Porter v. State, 234 Ala. 11, 174 So. 311. See, Sibbach v. Wilson & Co., 312 U.S. 1, 655, 61 S.Ct. 422, 85 L.Ed. 479; Wayman v. Southard, 10 Wheat. 1, 42, 6 L. Ed. 253. The power of this Court flowing from the provisions of section 140 of the Constitution by inference and the power conferred on the legislature to prescribe rules of practice and procedure must be coordinated.

The power which this Court has to make rules and regulations for inferior courts is to do a judicial act. The legislative power to make the rules and regulations for all the courts is legislative. There are certain proceedings which are so vital to the efficient functioning of a court as to be beyond the legislative power. This Court may by section 140, supra, make rules and regulations which cover that field and also those which extend beyond it. The legislature has the same power in the latter field. But that of the legislature in it being by express constitutional grant is superior to that of this Court inferred merely from section 140, supra. The legislature may preempt that field or omit to act in it, so as to permit the court to have full sway temporarily in it. Or it .may by legislative enactment give clear expression to the constitutional implication in the form of ’a delegation to this Court of the power to make rules of practice for inferior tribunals. In either event, the action by this Court is judicial in nature, but becomes the law pro tanto and remains so until it is amended or repealed.

But the failure of the legislature to act or its express authority to do so given to this Court is operative only until the legislature undertakes again to enter the field by making rules and regulations through legislative channels. It cannot permanently diminish or abrogate its constitutional power to be thereafter exercised to make laws, including those pertaining to practice and procedure. It cannot curtail future constitutionally authorized legislation.

Since the legislature can make rules of practice and procedure, it can amend any rules made by it, or by this Court, for an inferior court, unless by doing so it prohibits the due and orderly processes by which that court functions, or prevents it from properly functioning. 21 Corpus Juris Secundum, Courts, p. 288, § 179, subsec. b. The legislature may therefore amend the law as expressed in Equity Rule 56, unless by so doing it would hamper the proper functioning of the trial court. Our judgment is that the Act of May 21, 1943, supra, would not have that effect.

In amending that law, it is immaterial that it purports to amend a rule of this Court. The substance and effect is that it amends the law as thus expressed and refers to the rule for clarity. This is not objectionable, when as enacted it is complete, clear and precise within itself. Harris v. State ex rel. Williams, 228 Ala. 100, 151 So. 858.

The writ of prohibition prayed for is denied.

GARDNER, C. J., and THOMAS, BROWN, STAKELY and SIMPSON, JJ., concur. LIVINGSTON, J., dissents.