Appellants' motion "to quash, vacate, expunge and annul that certain decree of this Court rendered April 14, 1949," and his application for rehearing are rested on two grounds: first that § 15, Title 13, Code of 1940, is unconstitutional, that the legislature was without authority to enact any such statute, and two that the disqualification as certified is rested on "current" illness and not on "prolonged illness of a chronic nature," and was made by the Chief Justice who was without authority under the statute to certify his own illness and disqualification. Therefore, the appointment of Carnley as Special Associate Justice to serve in this case was void.
The statute provides: "When by reason of disqualification the number of judges competent to sit in a cause is reduced to six or to four, and there is equal division among them on any question material to the determination of the case, the fact shall be certified by the chief justice, or when he is disqualified by the judges sitting, to the governor, who shall thereupon appoint a member of the bar of the supreme court to sit as a judge of said court in the determination of said cause; and similarly when by reason of disqualification no one of the judges is competent to sit in a cause, or the number is reduced below four, the fact shall be certified by the chief justice, if he is competent to sit, or if not, by the judge or judges sitting, or if no one is competent, by the clerk of the court, to the governor, who shall thereupon appoint a number of members of the bar of the supreme court to constitute a special court of five members for the consideration and determination of such cause. The word 'disqualification,' as used in this section, being taken to include inability to sit by reason of prolonged illness of a chronic nature."
The effect of this statute is to create the office of special associate justice or special judge to sit in case of a tie between the judges who are qualified to sit in a cause and likewise where all of the justices are disqualified it creates a special court of five members for the consideration and determination of such cause to be filled by appointment of the governor of members of the bar of the court to act as such special court. This statute was so interpreted by the chief justice and the several justices of the court when they certified their disqualification and five special justices were appointed to decide the case of State Docks Commission v. State, 227 Ala. 521, 150 So. 537, and also in Abramson v. Hard,229 Ala. 2, 155 So. 590; Cook v. Continental Ins. Co., 220 Ala. 162,163, 168, 124 So. 239, 65 A.L.R. 921; and in other instances.
The appellants' contention, to state it more specifically, is that said section 15, *Page 294 Title 13, Code of 1940, violates § 152 of the Constitution of 1901, which provides: "The chief justice and associate justices of the supreme court, judges of the circuit courts, judges of probate courts, and chancellors shall be elected by the qualified electors of the state, circuits, counties, and chancery divisions, for which such courts may be established, at such times as may be prescribed by law, except as hereinotherwise provided." [Italics supplied.]
The case of Ex parte Amos, 51 Ala. 57, is cited and relied on by appellants. That case was decided in 1874, declaring unconstitutional and void a statute providing for the selection of a special judge of the circuit court where the regular judge was disqualified to act. We quote the opinion:
"This application involves the construction of section 758 of the Revised Code, and a consideration of its validity under the present constitution of the State. (Constitution of 1868) The state constitution creates the state government, and it is wholly an instrument of limitations. The officers of the government thus instituted are the agents of the people, to execute its powers, and the constitution is the warrant and thelimit of their authority. Smith's Comm. on State. Const. Construction, p. 443, §§ 294 et seq. The Revised Code has never been adopted by the present government of the State, under the present constitution, as a whole; only such laws and parts of laws, as do not conflict with the constitution and laws of the United States, or with the constitution of this State, have been continued in force. See Acts 1868, p. 7.
"The section of the Code referred to is in these words: '758. When any judge of the circuit court is incompetent to try any case standing for trial, by reason of relationship to parties, or of having been engaged as counsel in the cause, or for any other reason, the parties to the suit must, when the same is reached for trial, nominate some attorney present in court,who must preside as judge for the trial of such cause, during that term; and if the parties fail promptly to make such selection, the clerk of the court must nominate the attorney, who shall preside over and try the cause at that term.' This law clearly makes the attorney, who presides at the trial thus appointed to be had, a 'judge for the trial of such cause during that term.' Then, he would have all the authority to manage and conduct the trial, according to the practice of the court, and enter on the minutes of the court such judgment as he may determine upon and consider, as a judge of the circuit court would be bound to do. It seems to me that no other logical inference can be drawn from the purpose and language of the law. Then, the question arises, can such a judge, under the present constitution, be created by the act of one of the parties to the suit, in opposition to the will of the other party, or by act of the general assembly of the State? This inquiry must be answered from the constitution itself. This instrument declares, that the judicial power of the State shall be vested in certain named officers, who are specially designated, and in 'such persons as may be by law invested with powers of a judicial nature.' Const. Ala. Art. VI, § 1. After creating the courts of the state government, the constitution directs, that the judge of these courts, except 'notaries public,' shall be elected by the people; and it also prescribes by whom vacancies shall be filled in the offices thus established. Const. Art. VI, §§ 11, 13. It is nowhere permitted to the legislature to elect or appoint any judicial officer or officers of the State, or to fill any vacancy in any judicial office. Nor is the legislative body empowered to authorize any person to discharge any of the duties of a judge of the circuit court. Such officer can only be elected by the people, or appointed to fill a vacancy by the governor, as directed in the constitution as above cited. State ex rel. Bull v. Snodgrass,4 Nev. 524. A judge of the circuit court, with compulsory powers to hear and determine causes pending in a circuit court of this State, can only be created by election or appointment in the manner prescribed by the constitution of the State. Const. Ala. 1867, Art. VI, § 11; Acts Ala. 1870-1871, p. 17. It follows from this, that section 758 of the Revised Code is unconstitutional, and void * * *." [Italics supplied.]
The opinion in Ex parte Amos, supra, is based on the concept that the legislature has no power except that expressly conferred by the constitution. This *Page 295 concept is so contrary to the settled law that we need only refer to a few of our cases. As observed by Chief Justice Gardner, in one of our recent cases speaking of state legislative power, "* * * And it must be borne in mind also that legislative power is not derived from either the State or Federal Constitution. These are only limitations upon power. Apart from the limitations imposed by these fundamental charters of government, the power of the legislature has no bounds, and is as plenary as that of the British Parliament.
"Or to state it differently, all that the legislature is not forbidden to do by the organic law, state or federal, it has full competency to do. And in passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government. All of which is embraced in the simple statement that it is the recognized duty of the court to sustain the act unless it is clear beyond a reasonable doubt that it is violative of the fundamental law. Gray v. Johnson, 235 Ala. 405, 179 So. 221; Walden v. City of Montgomery, 214 Ala. 409, 108 So. 231; Miller v. Marx, 55 Ala. 322, [332]." State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 334, 186 So. 487, 489, 121 A.L.R. 283. See also Casmus v. Lee, 236 Ala. 396, 183 So. 185, 118 A.L.R. 822.
Said § 758 of the Revised Code of 1867 declared unconstitutional in Ex parte Amos, supra, was challenged as unconstitutional in Alabama Florida Railroad Co. v. Burkett,42 Ala. 83, and the statute was there upheld as constitutional. The court observed:
"Constitutional provisions relating to the power of a State legislature are not grants of power, but limitations of power; and the rule in such cases is, that such provisions shall be strictly construed. — Fletcher v. Peck, 6 Cranch, 87 (3 L. Ed. 162]; Golden v. Prince, 3 Wn. C.C.R. 313 [10 Fed. Cas. No. 5,509]. The application of this rule of construction will show, as I believe, the correctness of the conclusion that there is no constitutional inhibition of the character named. I, therefore, hold the correct interpretation of the constitution to be, that the general judicial power of the State is to be exercised, as vested, by the judges of the several courts who have been chosen in the mode provided; that its exercise is to be in conformity to the rules of the common law, and suchregulations as may be prescribed by the legislature; and that there is no limitation upon the power of the latter to provide a mode for the trial of such causes, as the regular judges, by the rules of the common law, may decline, or be incompetent to try. If the legislature had not such power as is last mentioned, it is obvious that there might be a failure of justice in many cases for the want of a competent tribunal to try them. The conclusion as to the constitutionality of the act in question is strengthened by the fact that it has been frequently acted upon in practice, and I am not aware that it has ever before been assailed on the ground of its unconstitutionality; and this court, in one case at least, has revised the action of a special judge selected by the parties under the statute, which was equivalent to an assertion of the rightful jurisdiction of such special judge. — Holly v. Carson, 39 Ala. 345; see also, Grinstead v. Buckley, 32 Miss. 148. It results from what has been said, that the motion to dismiss the appeal must be overruled; * * *."
This holding is in direct conflict with the Amos case, supra, and the interpretation of the constitution therein.
Article VI, Section 151 of the constitution provides: "The supreme court shall consist of one chief justice and such number of associate justices as may be prescribed by law." If any authority other than the plenary power vested in the legislature was needed to authorize it to enact Title 13, Chapter 2, of the Code of 1940, this provision of the constitution would be ample authority to that end. We are, therefore, of opinion that Section 15, Title 13, Code of 1940, is not subject to the challenge that it is unconstitutional.
Proceeding to the consideration of the other questions argued in the application for rehearing, it may be observed that it has long been settled in Alabama, that although the appointment of a judge to an *Page 296 existing office is void, if he has been duly commissioned, as was Special Justice Carnley in the instant case, and acted at a time and place provided by law for holding the court over which he presides or in proceedings in which he participated, he is a de facto Judge or Justice, as the case may be, and his acts are valid and unimpeachable. — Ex parte State ex rel. Attorney General et al., 142 Ala. 87, 38 So. 835, 110 Am. St. Rep. 20; Walker v. State, 142 Ala. 7, 39 So. 242; Masterson v. Matthews, 60 Ala. 260; Norwood v. Louisville N. R. Co., 149 Ala. 151, 42 So. 683.
The motion to expunge and the application for rehearing are without merit and are, therefore, overruled.
All the Justices concur except GARDNER, C. J., not sitting.