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.' *Page 324
"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.