Brandon v. State

• Decision Date: 17 March 1936
• Docket Number: 6 Div. 757
• Citation: 173 So. 240,27 Ala.App. 321
• Parties: BRANDON v. STATE.
• Court: Alabama Court of Appeals

173 So. 240

27 Ala.App. 321

BRANDON v. STATE.

6 Div. 757

Court of Appeals of Alabama

March 17, 1936

Rehearing Denied May 26, 1936

Reversed after Mandate Nov. 3, 1936

Rehearing Stricken Dec. 15, 1936

Motion to Set Aside Order Striking Rehearing Denied Jan. 12, 1937

Appeal from Circuit Court, Jefferson County; J.F. Thompson, Judge.

Forney W. Brandon was convicted of embezzlement, and he appeals.

Reversed and remanded.

Conforming to answer to certified question in (6 Div. 757) 173 So. 238.

Certiorari granted by Supreme Court in Brandon v. State (6 Div 990) 173 So. 251.

Certiorari denied by Supreme Court in Brandon v. State (6 Div 97) 173 So. 253.

Ernest Matthews, Clarence Mullins, and John D Hill, all of Birmingham, for appellant.

A.A Carmichael, Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen for the State.

In each count of the indictment in this case, this appellant was designated as "Deputy Circuit Clerk of the Criminal Division of the Circuit Court of the Tenth Judicial Circuit of Alabama."

It is without dispute that said purported office being held by appellant was under the provisions of the act of the Legislature approved February 3, 1923, Gen.Acts 1923, p. 15; the title to which reads as follows: "To create the office of Deputy Circuit Clerk of the Criminal Division of the Circuit Court in all counties of the State having a population of more than two hundred thousand, according to the last, or any subsequent Federal census; to provide for the appointment of such officer and the election of his successor; to prescribe the duties, authorities and to fix the compensation of such Deputy Circuit Clerk."

The constitutionality and validity of said act was questioned, by demurrer, and otherwise, in the court below, and to adverse rulings of the trial court, in this connection, due and legal exceptions were reserved, and on this appeal a threshold inquiry is whether there was any such office in Jefferson county as deputy circuit clerk of the criminal division of the Tenth judicial circuit of Alabama at the time it is alleged appellant converted the funds set out in the indictment.

In our initial consideration of the foregoing point of decision, this court was unanimously of the opinion that the act in question was a nullity and violative of sections 106 and 110 of the Constitution. Not being authorized to so declare, and hold, this court proceeded under section 7322 of the Code to submit the question involving the validity of said Statute to the Supreme Court as therein provided.

The pertinent provisions of section 7322, supra, reads as follows: "Validity of statute submitted to supreme court.--Before the court of appeals should strike down any statute, federal or state, not previously nullified by the supreme court, the question involving the validity of same must be submitted to the supreme court for determination, the result shall be transmitted to the court of appeals, which said court shall be controlled in its decision by the determination of the supreme court. When a statute has been assailed upon constitutional grounds, in the court of appeals, and is upheld by said court, the aggrieved party may review the ruling of the court of appeals in this particular, by a writ of error to the supreme court, unless the question was previously submitted to the supreme court by the court of appeals."

In this connection, the following proceedings were had:

"To the Supreme Court of Alabama:

"There is pending in the Court of Appeals a proceeding, on appeal, wherein a material inquiry is the validity of an Act of the Legislature, approved February 3, 1923 (Gen.Acts 1923, p. 15). The title to said Act reads as follows:

" 'To create the office of Deputy Circuit Clerk of the Criminal Division of the Circuit Court in all counties of the State having a population of more than two hundred thousand, according to the last, or any subsequent Federal census; to provide for the appointment of such officer and the election of his successor; to prescribe the duties, authorities and to fix the compensation of such Deputy Circuit Clerk.'

"The foregoing question is certified to the Supreme Court, under the provisions of section 7322 of the Code 1923.

"C.R. Bricken,

"Presiding Judge.

"Wm. H. Samford,

"James Rice,

"Judges.

"NOTE.--For the convenience of the court we accompany the foregoing inquiry with briefs of respective counsel. In addition thereto, being of the opinion that the act in question is a nullity, the writer begs permission to also submit his views in this connection also transmitted in writing herewith.

"BRICKEN, Presiding Judge.

"A material inquiry in this case is whether there was any such office in Jefferson County as Deputy Circuit Clerk of the Criminal Division of the Tenth Judicial Circuit of Alabama at the time it is alleged appellant converted the funds set out in the indictment.

"The supposed office purports to have been created by an Act approved February 3, 1923, Gen.Acts 1923, p. 15, the title of which reads as follows:

" 'To create the office of Deputy Circuit Clerk of the Criminal Division of the Circuit Court in all counties of the State having a population of more than two hundred thousand, according to the last, or any subsequent Federal census; to provide for the appointment of such officer and the election of his successor; to prescribe the duties, authorities and to fix the compensation of such Deputy Circuit Clerk.'

"The Criminal Division of the Tenth Judicial Circuit was created by section 3 (A) of an Act approved September 25, 1915, Gen.Acts 1915, p. 809, which now appears as sections 6686 and 6687 of the Code of 1923. These two sections read as follows:

" '6686. How judges designated in circuits of one county having more than three judges.--In circuits composed of only one county for which more than three judges are provided, the judges shall be numbered first, second, third, fourth, and so forth, consecutively, so that each judgeship shall be designated by a number, and the judges shall be so designated on the ballot used in the primary and general election; and where a branch or division of the circuit court of such circuit is held at a place other than at the county site, the judge who shall preside over that division as of course, shall, in addition to his number, be designated by the appropriate name of that division.

" '6687. Divisions of court in such circuit.--The court of such circuits shall have three separate divisions: an equity division, a criminal division, and a law division; and the judge numbered one shall sit in the equity division as of course, the judges numbered two and three shall sit in the criminal division as of course, and the remainder of the judges shall sit in the law division as of course; but in such circuits where a branch or division of the circuit court is held at a place other than at the county site, the judge numbered fifth shall sit in that division as of course, and he shall preside over such division in the trial of all cases, whether equity, criminal, or law.'

"When we consider the Act approved February 3, 1923, along with the sections of the Code quoted, we find that whenever any county in the State other than Jefferson, reaches the requisite population, the Act approved February 3, 1923, would not apply to such county unless the county is also a circuit for which more than three judges are provided, as the Statute directs, because only in the latter event is a Criminal Division of the Circuit Court in counties having 200,000 or more population provided for.

"At the time the Act approved February 3, 1923, was approved Jefferson was the only county in the State having more than 200,000 population. The other 66 counties in the State may meet the population requirement by the time the next census is taken, but reaching the population requirement does not create a Criminal Division of the Circuit Court in such counties. A Criminal Division of the Circuit Court is only created by the Statute in a circuit composed of only one county for which more than three judges are provided. This, without more, we think is sufficient to show that the Act approved February 3, 1923, purporting to create the office of Deputy Circuit Clerk of the Criminal Division of the Circuit Court in all counties of the State having a population of more than 200,000 according to the last or any subsequent Federal census, is in truth and in fact a local law, and not having been advertised as is required by the Constitution, it is null and void.

"In the case of Henry v. Wilson, 224 Ala. 261, 139 So. 259, 261, our Supreme Court said:

" 'While there is an attempt to give the act a cloak of generality, a reading of same discloses that it is intended to deal only with conditions in Jefferson county, though it might apply to Montgomery county in the remote future, but cannot apply to the other counties, in its major parts, unless lawmakers, in the future, change or revolutionize the method of compensating clerks, deputies, or assistants of the respective officials. State v. Gullatt, 210 Ala. 452, 98 So. 373; In re Opinion of the Justices, 216 Ala. 469, 113 So. 584; Mobile County v. Byrne, 218 Ala. 5, 117 So. 83; Birmingham Electric Co. v. Harry, 215 Ala. 458, 111 So. 41; Kearley v. State ex rel. Hamilton 137. So. 424.'

"The authorities convince us that the act under discussion is a nullity."

In response to the foregoing, the Supreme Court transmitted to this court the result of their determination, and in a decision rendered the following opinion through Mr. Justice BROWN, which as therein stated, was concurred in by all the Justices of the Supreme Court.

"In Re Act No. 21, Originating in House Bill No. 70, by Fite,...