Brandon v. State , 233 Ala. 1 ( 1936 )

The constitutional integrity of the above act, entitled "An Act To create the office of Deputy Circuit Clerk of theCriminal 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," is certified here by the judges of the Court of Appeals, as an abstract proposition, accompanied with an opinion by the presiding judge of said court, in which it is stated that said act was passed without publication and proof, required by section 106 of the Constitution. (Italics supplied.)

We are of the opinion that the Court of Appeals, and for the reasons stated in said opinion, has reached the correct conclusion — that said act is a local law and was passed in violation of section 106 of the Constitution, and under the mandate of section 110 of the Constitution must be declared void. See, in addition to the authorities cited by the Court of Appeals, Jefferson County v. Busby, 226 Ala. 293, 148 So. 411; Brandon v. Chambers, 229 Ala. 327, 157 So. 235.

That the circuit court, criminal division, of Jefferson county may not be embarrassed in the transaction of its business, we deem it proper to observe, that section 6723, subsec. 2, of the Code, creates the office of deputy clerk of the circuit court, to be appointed by the clerk, requires such deputies to take the official oath, "with full power to transact all business of such clerks." The power to appoint is not limited to one, but as many may be appointed as are necessary. Code 1923, § 6723.

Section 421 of the Code, 1923, also provides as follows: "Deputy circuit clerks in counties having more than threecircuit judges. — In all counties having more than three circuit judges there shall be elected at each election when clerks of the circuit court are elected, a deputy circuit clerk, who shall hold office during the term of the circuit clerk of such county, and until his successor is elected and qualified." This seems to be a codification of the Act of 1915 (Gen.Acts 1915, p. 741, §§ 1-3) applicable to the Bessemer Division.

Section 106 of the Constitution has no application to the adoption of the Code, and, therefore, though the act of 1915 was passed in violation of section 106, its codification and adoption as part of the Code of 1923 made it valid.

Let the foregoing be certified to the Court of Appeals.

All the Justices concur.