Goolsby v. State , 213 Ala. 351 ( 1925 )

Distinguished counsel urges that a question of jurisdiction is for decision. Under the codification of the acts of 1911 defining the jurisdiction and powers of the Court of Appeals (Acts 1911, pp. 95, 449, codified as sections 7310, 7322), it is urged, the Court of Appeals having certified the question of the constitutionality of a statute, thereupon it should have required the transcript and all papers in said cause to be transmitted to this court, and that all proceedings thereafter be in this court "as if said cause had been appealed originally to said Supreme Court."

To a full understanding of the question before us it should be noted that the former statute "to establish the Court of Appeals," among other things, provided:

"* * * That if the validity of a statute of this state or of the United States is involved said Court of Appeals shall so certify and thereupon the transcript and all papers in said cause, with such certificate shall be transmitted to the Supreme Court and all proceedings conducted thereafter as if said cause had been appealed originally to said Supreme Court: Provided, further, that if the judges of said court are unable to reach a unanimous conclusion, or decision, in any case or matter before them, any one of said judges may certify to the Supreme Court any question or questions of law as to which said judges differ, stating such questions as abstract propositions, and the Supreme Court shall give its opinion upon the question so certified, and the opinions thus given by the Supreme Court shall be given the same effect by said Court of Appeals as it is required to give to the decisions of said Supreme Court." Acts 1911, p. 96.

The latter act had for its purpose the regulation of appeals and the construction of the validity of statutes by the Supreme Court and the Court of Appeals, and it contained the provision:

"That 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: Provided, however, that 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." Acts 1911, p. 449.

Thus the last act was a modification of the first in respect to the question, not of jurisdiction to declare a statute, state or federal, unconstitutional, but of the procedure to judgment after the constitutionality vel non of the statute has been declared by this court; that is to say, the acts before us, in legal effect, have been treated by this court and the Court of Appeals, in the due procedure of many causes, to the ascertainment of the constitutionality vel non of a statute necessary to a decision of a pending cause within the jurisdiction of the Court of Appeals, where the attack on the statute had not theretofore been settled by this court. The construction, by way of implication, by this court of certifications by the Court of Appeals, of the constitutionality vel non of many important statutes, and the replies thereto transmitted to the Court of Appeals, and thereafter the procedure to judgments in the latter court in accordance with our decision in the premises, was before the adoption of the Code of 1923.

For this due procedure to judgment in the Court of Appeals there is authority. Banks v. State, 207 Ala. 179, 93 So. 293, 24 A.L.R. 1359; State v. Williams, 207 Ala. 517, 93 So. 381; State v. Goldstein, 207 Ala. 569, 93 So. 308; L. N. R. Co. v. State (Headlight Case) 16 Ala. App. 199, 76 So. 505, 510; Western U. T. Co. v. Beasley, 205 Ala. 115, 87 So. 858; Acuff v. Weaver, 17 Ala. App. 532, 86 So. 167; Thomas v. State,16 Ala. App. 145, 75 So. 821; Hudgens v. State, 15 Ala. App. 156,72 So. 605; Rogers v. White, 14 Ala. App. 482, 70 So. 994; McLendon v. State, 6 Ala. App. 19, 60 So. 406; Id., 179 Ala. 54,60 So. 392, Ann. Cas. 1915C, 691; Lovejoy v. City of Montgomery, 9 Ala. App. 466, 61 So. 600; Id., 180 Ala. 473,61 So. 597. When this court decides the question propounded by the Court of Appeals as to the constitutionality vel non of a statute, and the response thereto is certified to the Court of Appeals, it is within its established jurisdiction (and according to the statute and procedure heretofore established and acted upon by the two courts) to proceed to the final judgment in said pending cause, under the statute as construed by this court.

We may add to the original opinion that we entertained no doubt of the constitutionality of the act of 1915, codified as sections 4159, 4160, of the Code of 1923, providing punishment for fraud or misrepresentations which amount to false pretense in the matter indicated, and this was and may be done within the provisions of state and federal Constitutions.

This response will be certified to the Court of Appeals.

Application overruled.

All the Justices concur.