Osborn v. Henry , 200 Ala. 353 ( 1917 )

In my opinion, Matthews holds office as register of the circuit court, an office of statutory creation under section 12, Act 1915, p. 811, and that he is, to all intent and purpose, a county officer. I do not think that it is therefore necessary to decide whether or not the "register in chancery," as provided for in section 163 of the Constitution of 1901, is or is not a county officer, as we are dealing with one of statutory creation and not one provided for under said section 163 of the Constitution. Said section 163 provides for the appointment of a register in chancery by the chancellor, and when the chancery court and the office of chancellor were abolished by the Consolidated Court Act, this necessarily abolished the office of register of the chancery court. There being no chancellor, there can be no register in chancery under the Constitution. Therefore the Legislature, being cognizant of this fact, created the office of register of the circuit court for each county. I do not therefore take issue with the holding of the majority that the salary amendment of the Constitution as to the compensation for county officers in Jefferson county includes the office in question. Nor do I contend that the Legislature cannot now place him upon a salary, but I do dissent from the holding that he has been placed upon a salary by Local Act of 1915, p. 374. To my mind, this act attempts to deal with the old register in chancery under the Constitution, and not the register of the circuit court as created by Act 1915, p. 811. It is true that this local act was passed after the passage of the Consolidated Court Act, but it was introduced long before the adoption of the Consolidated Act, and was passed before the act of September 25, 1915, creating the present office, and I am of the opinion that said local act was intended to apply to the old register in chancery as it existed when the bill was introduced, and that the Legislature overlooked the fact that the office of register in chancery has been abolished. It could hardly be said that the act was intended to apply to the new office of register of the circuit court, which was not created until some days after the passage of said local act. Moreover, if it be conceded that the Local Salary Act was broad enough to apply to the subsequently created office in question, then I think that so much thereof as fixes the salary was repealed by necessary implication by the subsequent Act 1915, p. 811, § 12, which provides, without limitation or qualification, that the registers of the circuit courts "should be entitled to receive all the fees prescribed for registers in chancery." (Italics supplied.) While courts do not generally invoke repeals by implication, yet when the Legislature attempts to revise and deal with an entire subject and to make all necessary provision connected therewith, although the last act contains no express repealing clause, it must operate as a repeal of previous enactments upon the same subject.

I dissent from the holding of the majority.