142 Ala. 7 | Ala. | 1904
Upon the authority of the case of The State of Alabama ex rel. The Attorney-General v. T. Scott Sayre, Judge, etc., rendered at this term of the court, opinion in MS., the Act of the Legislature, approved March 6th, 1903, creating the 14th judicial circuit to be composed of the counties of Walker and Winston, must he declared void as being violative of the Constitution in its enactment.
The Act in question, however, did not purport to create a circuit court of Walker county, for such a court al
By this state of the case it will be seen that we have a legally constituted court presided over by one not a de jure judge.
Thus the question is presented as to the validity of judgments and proceedings of a court when presided over by one who' has no legal right or title to the office of judge.
Under the facts of the case, there can be no doubt but that the Hon. J. J. Ray, when presiding over the circuit court, was a judge de facto.
The proposition of law is well settled by adjudications not only of this court, but courts of other jurisdictions that the proceedings and judgments of a court presided over by a de facto officer are not void. — Masterson v. Matthews, 60 Ala. 260; Roberts v. State, 126 Ala. 74; Norton v. Shelby County, 118 U. S. 425; Gorman v. People, 17 Col. 596; S. C. 31 Am. St. Rep. 350, and see authorities collated in Roberts v. State, supra, on page 78.
It appears from the record in this case, that the court at which the defendant was indicted was organized on Monday, the 4th day of January, 1904, and it further appears that the indictment was returned into court on the 10th day of February, 1904, and on that day the defendant was arraigned and a future day set for the trial of his cause. And on the 17th day of February, 1904, the cause was tried and a judgment of conviction rendered.
By an Act approved September 28th, 1903, Entitled An Act “To fix a time of holding courts in the 14th judicial circuit of Alabama,” page 391, Local Acts, session 1903, it was provided as follows in section 1 of said Act: “In the county of Walker the court shall be held as follows: The first term shall begin the first Monday in January and may continue until the 30th day of June, except the two weeks beginning the third Monday in March. The second term of the circuit court in Walker county, shall begin the first Monday in October and
It is manifest that the term of the court at which the defendant was indicted and tried was convened under the provisions of said Act. The striking down of the Act approved March the 6th, 1903, creating the 14th judicial circuit involves the validity of the Act of the 28th of September, 1903.
Section 45 of the Constitution provides, that “each law shall contain but one subject, which shall be clearly expressed in its title,” etc. At the time of the passage of said Act, there was no 14th judicial circuí* of Alabama, and the time for holding the circuit court >n Walker county is not expressed in the title. The provision in the body of the Act fixing the time for holding the circuit court in Walker county is a subject n'ot expressed in the title of the Act, the Act, therefore, in so far as it relates to fixing the time for holding the circuit court is violative of said section of the Constitution, and it necessarily follows that the same must be declared void.
We must, therefore, look elsewhere to ascertain the time fixed by law for holding the circuit court in Walker county, and the only law upon the subject is embraced in § 908 of the Code, which fixes the time for holding the circuit court in the 10th judicial circuit, of which circuit the county of Walker is a part. From, an inspection of this section of the Code it will he seen that the indictment in this case was found, and the defendant was arraigned, and a day set for a trial at a time different from that fixed by law for the holding of the court, and therefore, at a time not authorized by law. This being the case it follows that the indictment was void as well as the arraignment, and the order setting the day for trial; and this is so> whether the judge presiding be an officer cle jure or de facto, and for this reason the judgment of conviction was erroneous, and which error necessarily works a reversal of the case. The judgment is, therefore, reversed and the cause will be remanded to the end that the circuit court may quash the indictment, and hold the defendant to answer a new indictment.
The defendant will remain in custody until discharged according to law.
Since writing the foregoing opinion, our attention has been called to an Act approved December 13th, 1900, Session Acts 1900-1901, page 646, in which the time for holding the courts in the 10th judicial- circuit are changed from the times as fixed by § 908 of the Code. From this it appears that the trial in the foregoing case was had at a time not authorized by law for the holding of the circuit court of Walker county. The judgment of conviction was therefore, void, and there is nothing to support the appeal. The judgment, of reversal rendered by this court at a former day of this term, must, therefore, be. set aside, and a judgment will be now rendered dismissing the appeal.
