— I concur in the judgment of reversal in this *326case, and the argument of the majority of the court, except upon what may be considered the question of chief importance in this prosecution. That is this : Was the accused a “solicitor in the County of Dallas,” or a “ municipal officer of court,” on the day he received the bill of exchange, or draft, from Hill, in May, 1870, which constitutes the offence for which he is indicted ? If he was not, then this necessarily puts an end to this prosecution, so far at least as it may rest upon a criminal charge under our statute.
The law denouncing bribery as a crime is in these words: “ Any ministerial officer of any court, or any person summoned as a juror, or appointed an auditor, arbitrator, umpire, or refereé, who corruptly takes, or agrees to take, anything, to give his verdict, award, or report, or corruptly receives, or agrees to receive, any gift or gratuity whatever, must, on conviction, be imprisoned in the penitentiary, or sentenced to hard labor for the county, for not less than two, nor more than five years.” Rev. Code, § 3564.
It will be seen that this section of the Code designates six classes of persons, filling certain offices, who are forbidden to take or receive, or to agree to take or to receive, a bribe. That is to say: 1, a ministerial officer of court; 2, a juror; 3, an auditor; 4, an arbitrator; 5, an umpire; 6, a referee.. That these persons are so singled out and defined is an indication of the legislative intention that no other persons are intended to be included in the enumeration. Penal statutes are to be strictly construed; and where there is doubt as to the person intended, the party accused is entitled to the benefit of such doubt. Chase v. N. Y. Cent. R. R. Co. 26 N. Y. Rep. 523; Dwarris on Stats, pp. 245, 246, Potter’s ed. 1871. No doubt a solicitor in the county is an officer of court, who falls under the penalties of the above-quoted law. But was the accused such officer, at the time he is charged to have committed the act which is charged against him as a crime ?
A solicitor in a county is a constitutional officer. The Constititution directs how that officer shall be elected or appointed to office. The words of the constitutional command are these : “ A solicitor shall be elected in each county in this State, by the qualified electors of each county, who shall reside in the county for which he is elected, and perform such duties as may be required of him by law. He shall hold his office for a term of four years, and, in case of a vacancy, such vacancy shall be filled by the judge of the Circuit Court, until his successor is elected and qualified.” Const, of Ala. 1867, Art. VI. § 17. The solicitor thus elected or appointed must be commissioned by the governor. Rev. Code, § 148. The Constitution having assumed to regulate the appointment of this officer, can *327he be appointed in any other way ? I think not. Upon the clear and often asserted principle, that the thing expressed excludes the thing omitted, there can be no solicitor in the county, unless he is elected by the people, or appointed by the judge of the circuit, in the mode above directed. Exprés sum facit cessare taciturn. Smith Constr. of Stats. § 390, 2d ed.; Dwarris on Stats, p. 221, Potter’s ed. 1871. This salutary rule ties up the hands of the court, and forbids judicial legislation, which is equally obnoxious to sound principle and to the Constitution itself. Const, of Ala. 1867, Art. III. § 1; Dwarris on Stats, p. 215, Potter’s ed. 1871.
The evidence shows that there was no vacancy in the office of solicitor in the County of Dallas at the time of the appointment of Diggs ; and the order of the court shows that the appointment was not made to fill a vacancy. It is expressed in these words: “April 1, 1870. Ordered, J. S. Diggs, Esq., act as solicitor pro tern, of this court, until further orders.” Under the Constitution, the appointment, if to fill a vacancy, continues “ until his successor is elected and qualified.” Const, of Ala. supra. This is all the appointment the judge of the circuit can make to the office of “ solicitor in the county ; ” and this can only be made to fill “ a vacancy.” If there is no vacancy, the judge acts without jurisdiction, and in violation of the Constitution; and his act is wholly void, and a nullity. 21 How. 506; 22 Barb. N. Y. 271; 13 Ill. 432. A court, or judge, acting under special powers, has only the jurisdiction expressly delegated ; and the facts must show that the right of jurisdiction exists. Collier’s Adm'r v. Windham, 27 Ala. 291; Pearson & Wife v. Darrington, 32 Ala. 227. In this case the proof shows that Haney was still the rightful solicitor in the county, and as such he claimed the office and its fees. Diggs, then, could not be solicitor. Any attempt to intrude him into that office was a clear usurpation, wholly unwarranted by law. Such a tenure of office does not create him a solicitor de facto. He does not hold under any color of right whatever, but wholly in defiance of law and right, and also of the public policy, embodied in the Constitution of the State. Const, of Ala. 1867, Art. VI. § 17, supra. The charge of the court objected to was, therefore, erroneous.
The Code authorizes the “ presiding judge,” in certain cases, to appoint a competent attorney to act in the place of the solicitor. This authority is given in these words : “ The presiding judge, when the solicitor is absent, or when he is connected with the party against whom it is his duty to appear by consanguinity or affinity within the fourth degree, must appoint a competent attorney to act in his place.” Rev. Code, § 859. This is not a power to make a solicitor, but to appoint “ an *328attorney ” to act in his place pro hac vice. This appointment is not made by the judge of the circuit, but may be made by any “ presiding judge ” of any court, when an attorney for the purposes above named is needed; and the appointment ends with the termination of the term of the court for which the appointment was made, or with the final disposition of the case or cases that required it to be made. This temporary appointment may be made as often as the exigencies require it; and it must be made by “ the presiding judge,” whether he may be the judge of the Circuit Court, or of the Criminal Court. The power under this section of the Code is given only to the presiding judge ; and it may as well be exercised by the judge of a city or criminal court, as by a circuit judge. Under this act, each court may have its own attorney to act in the place of the solicitor; but he cannot, as such, claim the office of solicitor in the county. Such attorney, if he accepts the appointment, is a ministerial officer of the court in which he is appointed to act; and, as such, he is punishable for the offence of bribery. Beyond this, the solicitor, duly elected or appointed, and commissioned by the governor, is the only solicitor known to the Constitution of the State, and the laws of the State having constitutional validity. The Constitution is a limit on the Code. The act adopting the Code excepts out of the legalization of that body of laws “ such as conflict with the Constitution and laws of the United States, or the Constitution of this State.” Acts of Ala. p. 7, “ An act to continue in force certain laxos."
The attorney appointed by the presiding judge, under the above quoted section of the Code, is not a de facto officer of court, but he is an officer de jure. And, with the highest respect and consideration for the opinion and legal learning of the majority of the court, I think there is not the slightest necessity for resorting to the doctrine of officers defacto in this case. Under the Constitution, there can be but one solicitor in the county at the same time, clothed with lawful authority to discharge all the duties of that office ; and this solicitor is, necessarily, an officer de jure ; and he should be commissioned by the governor, and should take the oath of office required by the Constitution. Const, of Ala. 1867, Art. YI. § 17 ; also Art. XY. § 1; Rev. Code, § 148. On the other hand, the attorney appointed by the presiding judge need not be commissioned by the governor, and he need not take any official oath. His office is also an office de jure. He holds under a legal and sufficient authority.
For these reasons, it is my conviction that the learned judge in the court below should have given the second, charge asked by the accused on the trial below, as well as the first; and for *329this, in addition to the reasons stated in the opinion of the majority of the court, the judgment of the court below should be reversed and remanded.