
    Carroll v. The State.
    
      Trespass after warning, tried before a Notary Public and ex-officio Justice of the Peace, in pursuance of an act conferring jurisdiction of all misdemeanors upon justices of the peace in certain Counties.
    
    1. Notaries public; origin and duties of the office; constitutional and statutory provisions. — Notaries are of ancient origin, long known to tlie civil and common law. Statutes have been enacted regulating the manner of their appointment, and to some extent defining their duties, which were formerly strictly ministerial — not clothed with judicial power, nor charged with judicial duty. The Constitution merely recognizes the existence of the office and provides for the mode of filling it; it does not create the office.
    2. Same; power of appointment by governor; civil and criminal jurisdiction conferred. — Under the Constitution, the governor has the power to appoint notaries public, conferring upon them only such powers as are appropriate to their office under existing law, or, in addition, the powers and jurisdiction of justices of the peace. In the latter case, the notary may exercise all the civil and criminal jurisdiction of a justice of the peace, as defined by statutes then existing, or thereafter enacted.
    3. Constitution; rule for construing. — Many rules for the construction of statutes are of but limited application to the construction of the Constitution. The safest rule for construing the latter is to regard, not so much the form or manner of the expression, as the nature and objeot of its provisions, and the end to be accomplished, giving the words their just and legitimate meaning.
    4. Same; meaning of term “proviso.” — Because the term provided is used in a law it does not necessarily follow that the matter which may succeed it is a proviso in its technical sense; it is the matter of the succeeding words, and not the form, which determines whether it is or not a technical proviso.
    
    Appeal from'the Circuit Court of Lee.
    Tried before tbe Hon. James E. Cobb.
    Tbe appellant, C. A. Carroll, was tried, convicted and fined by one Thomas L. Kennedy, notary public, on a charge of trespass after warning. From tbe judgment of conviction an appeal was taken to the said Circuit Court, and a statement there filed by the solicitor, upon which the trial was had de novo. Said statement is as follows:
    
      
    
    On appeal from the justices’ court of Thomas L. Kennedy, notary public and justice of tbe peace, in and for said State and county, and beat number 2, tbe State of Alabama, by its solicitor, complains of C. A. Carroll, that within twelve months before the commencement of this prosecution, he did, without legal cause or good excuse, enter into the dwelling house, or, on the premises, of one Joseph Barnett, after having been warned within six months preceding, not to do so, against the peace and dignity of the State of Alabama.
    J. B. Dowdell, Solicitor 9th Circuit.
    To this statement the defendant demurred, alleging as grounds:
    1st. That said statement shows that T. L. Kennedy, Esq., who acted as notary public, had no jurisdiction in the premises.
    2d. Said statement discloses that the judgment of conviction, from which the appeal was taken by defendant, was rendered by a notary public.
    Bd. That the act of the Legislature, approved Fab. 8th, 1877, entitled “An act to increase the criminal jurisdiction of justices of the peace and notaries public having like powers, in the counties of Lee, Madison, Jackson, Clarke, Choctaw, Walker, and Marion,” is unconstitutional and void, in so far as it relates to notaries public.
    The same question as raised by demurrer was presented by motion to quash, and by motion in arrest of judgment. The motions and demurrer were overruled, and defendant excepted. Such ruling is now assigned as error.
    J. M. Chilton, for appellant.
    1. Whether the notary had jurisdiction depends upon the validity of an act of the legislature, approved Feb. 8th, 1877. — Acts 1876-7, p. 197. For prior to this act, even if we concede that notaries had power of justices, they did not have jurisdiction of the offense here charged. — It. C. § 3932.
    2. Without questioning the power of the legislature to confer upon justices of the peace the jurisdiction created by the act, we insist that the power does not exist to confer such jurisdiction upon notaries public. Section 26 of Article VI. of the Constitution of 1868, and section 13 of the same article of the present Constitution, are essentially alike, and refer to civil, not criminal jurisdiction. This has already been so held, as to that part of the sections referring to justices.— Taylor v. Woods, 52 Ala. 474.
    3. The portion of the sections' referring to notaries, as clearly relates to civil jurisdiction as what precedes. The two parts are connected by a proviso, the “natural and appropriate office” of which, is to limit what follows by what precedes. — Bawls v. Kennedy, 23 Ala. 240; Pearce v. Banin Mobile, 33 ib. 693.
    4. Again, said section of the present Constitution provides that the jurisdiction authorized to be conferred upon notaries, shall be exercised within the precinct or ward for which they are appointed — a feature entirely consistent with civil, but wholly inconsistent with criminal jurisdiction. For justices, while limited to their precinct, in civil matters, have criminal jurisdiction throughout the county.
    5. We refer to these sections, not as containing any limitation on the power of the legislature in the matter of conferring criminal jurisdiction, but simply as showing that they refer solely to civil jurisdiction, and contain no grant of crim'inal jurisdiction.
    6. The prohibition upon -which we rely, is founded in section 8 of the “Declaration of Rights,” Constitution of 1875. That section first asserts the general proposition, that for an “indictable” offense, no one shall be proceeded against by “information.” Afterwards are mentioned the only exceptions to the general, prohibition: “Provided, that in cases of petit larceny,” &o., “and other misdemeanors, the general assembly may, by law, dispense with a grand jury, and authorize such prosecutions and proceedings before justices of the peace, or such other inferior courts as may he by lato established.”
    
    7. By this section, the framers of the Constitution divide criminal procedure into the two most general heads, namely, proceedings by indictment, and proceedings in the absence of an indictment or by information. It asserts, in effect, as a general proposition, that every person charged with an indictable offense, shall be entitled to have it passed on by a grand jury. Then follow the two, solitary exceptions. Notaries public do not fall within the exception, unless they are “justices of the peace,” or fall within the designation of “such other inferior courts as may be by law established.”
    8. A notary is, in no sense, a justice of the peace. The Constitution recognizes the two, as distinct classes of magistracy. It speaks of justices of the peace, and of notaries public. Because it refers to the civil jurisdiction of justices, in defining the civil jurisdiction of notaries, it does not constitute a notary a justice. . If it did, a justice might, with equal propriety, be called a notary. Nor is a notary ex-officio a justice of the peace, though popularly so called. Acts of the legislature establishing city courts, generally provide that the clerk shall exercise all the powers of clerks of the Oircuit Court; but this does not constitute the clerk of the City Court, ex-officio clerk of the Circuit Court. The very act under discussion, purports to confer upon justices, &e., concurrent jurisdiction with the Circuit Court, &c.; but this does not make the justice ex-officio judge of the Circuit Court. Had the framers of the Constitution intended that notaries should be ex-officio justices, they would have so declared. In tbe charters of cities, it has been frequently declared that the mayor should be ex-officio a justice of the peace — thus showing legislative recognition of the distinction. — Acts 1872-3, p. 364, § 22.
    9. Nor does a notary fall within the designation of such other inferior court as the legislature may by law establish. Because, the legislature, under the power granted to establish inferior courts, can establish no court established by the Constitution. It can only create such courts as are not constitutional courts. Courts of notaries and justices are created by the Constitution, and do not, therefore, remain to be created by law. The term “inferior courts,” as used in the 8th section of the Declaration of Bights, is used in the same sense as in other portions of the Constitution.
    JohN "W. A. SaNRORD, Attorney-General, contra.
    
    1. The Constitution of the State recognizes two classes of notaries public. To one class, in addition to the powers given by the law merchant and recognized everywhere in the mercantile world, it gives the judicial authority pertaining to a justice of the peace. To the other class nothing is granted beyond the power conferred by the law merchant. — Constitution of Alabama, Art. YI. § 26.
    2. The first class of notaries public is equal in every respect with justices of the peace. The title to the office is derived from different powers; but in everything else they are identical.
    3. There is nothing in the Constitution of the State that forbids the general assembly to make the jurisdiction of the justices of the peace over misdemeanors, co-terminous with the county. This power it has exercised. In Lee county, the jurisdiction of justices of the peace over misdemeanors is concurrent with that of the Circuit Court. — Bill of Bights, § 9 ; Acts 1876-7, p. 197. The act which confers this power violates no provision of the Constitution, and is, therefore valid.
    4. Bu't the notaries public having the jurisdiction of jus-, tices of the peace within precincts, have the same power conferred on them in Lee county as has been granted to the justices. Therefore, as the case at bar was within the jurisdiction of a justice of the peace it was within that also of the notary public, and the court committed no error in its action.
   BBICKELL, C. J.

On the 8th of February, 1877, an act of the general assembly was approved, which confers on justices of the peace and notaries public, having like powers, in several counties, and of them tbe county of Lee, original jurisdiction concurrent witb tbe Circuit Court, of all misdemeanors committed in said counties. — Pampb. Acts 1876-7, p. 197. Tbe single question tbis case presents, is the validity of tbis enactment, so far as it confers jurisdiction on notaries public.

Tbe ninth section of tbe first article of tbe Constitution authorizes tbe general assembly to dispense witb a grand jury in prosecutions for misdemeanor, and to confer on justices of tbe peace, or such other inferior courts as may be by law established, jurisdiction of such prosecutions. Tbe twenty-sixth section of tbe sixth article prescribes tbe number of justices of tbe peace — tbe mode of their election, and tbe extent of their civil jurisdiction, and concludes: “Provided, That tbe governor may appoint one notary public for each election precinct in counties, and one for each ward in cities of over five thousand inhabitants, who, in addition to tbe powers of notary, shall have and exercise tbe same jurisdiction as justices of the peace within tbe precincts and wards for which they are respectively appointed. And provided, That notaries public, without such jurisdiction, may be appointed. Tbe term of office of such justices and notaries public shall be prescribed by law.”

Notaries are of ancient origin, long known to tbe civil and common law. Originally, a mere scribe, taking notes or minutes, and making drafts of writings and public instruments, bis duties were extended witb tbe growth of commerce, and became more frequent in attestation and authentication of instruments peculiar to maritime law, or tbe law merchant. Hence, because of tbe credence which all civilized nations attach to bis attestation and authentication of such acts, to facilitate commercial intercourse, it is said be is an officer known to tbe law of nations. — Kirhsey v. Bates, 7 Port. 529. Statutes have been enacted regulating tbe manner of bis appointment, and to some extent defining bis duties. These duties were strictly ministerial — witb judicial power be was not clothed, nor was be charged witb any judicial duty. Tbe Constitution does not create tbe office. It recognizes its existence, and provides for the mode of filling it. Tbe character of its duties, as defined by tbe common law, or tbe law merchant and maritime law, which bad become incorporated into our common law, and by statutes, relating peculiarly to tbe authentication of instruments, intended as matter of evidence at home and abroad, rendered it peculiarly proper that tbe bead of tbe executive department should be clothed witb tbe power of appointment to tbe office. Tbe Constitution authorizes tbe governor, when appointing, to limit bis power and duty, as it was confined by the common law and existing statutes, to ministerial power and duty, or to authorize him to exercise the jurisdiction of a justice of the peace. It is argued, that as the power of the governor to appoint, and clothe with the jurisdiction of a justice of the peace, is found in the form of a proviso, to the section of the Constitution which defines the civil, and is silent as to the criminal jurisdiction of justices, that the jurisdiction the governor may authorize the notary to exercise is the civil jurisdiction defined in the preceding part of the section. It is a general principle, that the natural and appropriate office of a proviso to a statute, is to restrain or qualify some preceding matter, and upon sound principles of construction it should be confined to what precedes, unless it is clear that it was intended to apply to subsequent matter. — Rawls v. Kennedy, 23 Ala. 240; Pearce v. Bank of Mobile, 33 Ala. 693; Potter’s Dwarris, 118. A proviso, says Baldwin, J., “in deeds and laws is a limitation or exception to a grant made or authority conferred; the effect of which is to declare that the one shall not operate, or the other be exercised, unless in the case provided.” — Voorhees v. Bank of U. S. 10 Pet. 471. In Wayman v. Southard, 10 Wheat. 30, it is said: “The proviso is generally intended to restrain the enacting clause, and to except something which would otherwise have been within it, or in some measure, to modify the enacting clauses.” Another purpose for which it is often employed, is to exclude some possible misinterpretation of the general words of the enacting clause, as extending to cases not intended to be brought within its purview. — Minis v. U. 8. 15 Pet. 423. It does not necessarily follow because the term provided is used, that which may succeed it is a proviso, though that is the form in which an exception is generally made to, or a restraint or qualification imposed on the enácting clause. It is the matter of the succeeding words, and not the form, which determines whether it is or not a technical proviso. This and similar rules of statutory construction, are of limited application in the construction of the Constitution. “Sightly understood and rightly ap•plied, they undoubtedly furnish safe guides to assist us in the task of exposition. But they are susceptible of being applied, and indeed, are often injuriously applied to the subversion of the text and the objects of the instrument.”— 1 Story Const. § 448. The safe rule of constitutional construction, is to regard, not so much the form or manner of expression, as the nature and objects of its provisions, and the end to be accomplished, giving its words their just and legitimate meaning. The provision of the Constitution under consideration is obviously intended to confer on the governor the power of appointing notaries public; and in appointing, either to clothe them only with the powers appropriate to their office, as they were defined by existing laws, or in addition, with the same jurisdiction as justices of the peace. That jurisdiction was defined, not only by the preceding-part of the section, to which this provision is attached, but by section nine of the first article, and by laws which had been passed pursuant to it, under a similar provision in the Constitution of 1865 and 1868. No particular significance can be attached to the form, except that the general power of the qualified' electors of each election precinct to elect two justices of the peace, is not to exclude the power of the governor to appoint notaries, having like jurisdiction. Nor should the power of the governor to appoint such notaries, as is expressed in another provision, having the mere form of a proviso, exclude his power to appoint notaries without such jurisdiction. If the governor has, or may, in the county of Lee, and the other counties named in the act of the 8th February, 1877, as it is admitted in this ease he had, appointed notaries with “the same jurisdiction of justices of the peace,” we cannot doubt the notary is clothed alike with the civil and the criminal jurisdiction of a justice, whether •that jurisdiction is defined by section twenty-six of article six, or by section nine of article one, or by statutes which may have been, or may be enacted in reference to justices. This was the ruling of the Circuit Court, and its judgment is affirmed.  