Walker v. State

• Decision Date: 14 February 1905
• Citation: 142 Ala. 7,39 So. 242
• Parties: WALKER v. STATE.
• Court: Alabama Supreme Court

39 So. 242

142 Ala. 7

WALKER v. STATE.

Supreme Court of Alabama

February 14, 1905

Appeal from Circuit Court, Walker County; James J. Ray, Judge.

Henry Walker was convicted of murder in the first degree, and he appeals. Dismissed.

L. D Gray, for appellant.

Massey Wilson, Atty. Gen., and J. H. Bankhead, Jr., for the State.

DOWDELL J.

Upon the authority of the case of State of Alabama ex rel Attorney General v. T. Scott Sayre, Judge, etc. (rendered at this term of the court) 39 So. 240, the act of the Legislature approved March 6, 1903 (Acts 1903, p. 88) creating the Fourteenth judicial circuit, to be composed of the counties of Walker and Winston, must be 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 already existed under the law; but an appointment of a presiding judge for such court was provided for in section 2 of said act, and under the provision of said section Hon. J. J. Ray was appointed by the Governor to that office. By this state of the case it will be seen that we have a legally constituted court, presiding over by one not a dejure 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 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, 28 So. 741, 30 So. 554; Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178; Gorman v. People, 17 Colo. 596, 31 P. 335, 31 Am. St. Rep. 350. And see authorities collated in Roberts v. State, 126 Ala., on page 78, 28 South., on page 743. 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 28, 1903, entitled "An act to fix the time of holding courts in the Fourteenth judicial circuit of Alabama" (page 391, Loc. Acts Sess. 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 may continue until the end of the week which begins with the second Monday in December." 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 6, 1903, creating the Fourteenth 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 Fourteenth...