# Sanders v. Cabaniss

> Supreme Court of Alabama · January 15, 1869 · 43 Ala. 173

URL: https://www.frixlaw.com/law-library/cases/6507646

## Case

- **Full name:** SANDERS v. CABANISS
- **Court:** Supreme Court of Alabama
- **Decided:** January 15, 1869
- **Citations:** 43 Ala. 173
- **Precedential status:** Published
- **Opinion:** Concurrence by Peters
- **Judges:** Peck, Peters
- **Cited by:** 42 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6507646

## How later opinions describe it (automated extraction)

- stating that the judicial power requires -the exercise of judgment in a case or controversy
- discussing the separation-of-powers principle and stating, “ ‘[T]o declare what the law is, or has been, is a judicial power; to declare what the law shall be, is legislative.’ ”
- discussing the separation-of-powers principle and stating, "`[T]o declare what the law is, or has been, is a judicial power; to declare what the law shall be, is legislative.' "

## Opinion text

PETERS, J.
I concur with the court in the judgment refusing the motion, in its present shape, to remand this cause to the court below, but for reasons quite different from those assigned in the opinion of the able and learned Chief Justice.
It is wisely said, that courts will not inquire collaterally into the constitutionality of legislative enactments; and only that part of a statute which is repugnant to the constitution should be declared void. —State v. Rich, 20 Miss. 393 ; Miller v. The State, 30 Ohio St. 475 ; Fisher v. McGirr, 1 Gray, 1 ; Duer v. Small, 4 Black; 1 How. 311 .
This court is one of appellate jurisdiction wholly, except in a few cases mentioned, by name, in the constitution itself. And this is not one of the cases thus mentioned. To draw the statute, referred to in the opinion of a majority of the court, into discussion in this case, makes a new issue, which does not belong to the cause brought here by the appeal. This issue involves the construction of this law, and it can only come here properly upon a case in which it was first raised in the court below. It is not necessary for the determination of this motion, if indeed the matter, thus brought in, can be said to be coram judice at all. In any event, it is the practice of the courts exercising only appellate jurisdiction, not to seek to raise new points here for the first time, when such points are not an indispensable *190 part of the issue brought up by the appeal. It makes, so far as it goes, a new case in this court out of materials which do not come up with the matters appealed from, and ■the consideration of which is not required in order to afford the relief askéd. There is no authority known to me, which allows this court to remand a cause regularly in this court upon appeal, except upon judgment of reversal and order for new trial in the court below. There is no inherent power in this court to give itself such authority, without the aid of legislative enactment; and none such can be found.—1 Cranch, 137; 5 How. 119 ; 6 Cranch, 313 ; Constitution of Alabama, Article IV, § 1, 2; Revised Code, §§ 3485, 2247. And for this reason the motion can not be granted. I therefore concur with the majority of the court in their judgment, but express no opinion upon the statute in question, or any part of it. It is still an open question, so far as I am concerned ; and I am by no means satisfied, upon a very hasty and imperfect examination, that any portion of it is unconstitutional and void. Undoubtedly, the legislature has the power to give the courts authority to grant new trials, (Revised Code, § 2812 to 2827;) for if they have it at all, it must come from this source ; and the section of the law objected to, amounts to nothing more; the language in which it is couched is of no consequence. All laws are commands.—2 Bouv. Law Dict. 7; 1 Black. Com., Wendell’s, 44; Gen. XX, 3, 4, 5.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6507646. Public record. Not legal advice.