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. 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 the limit of their authority. Smith’s Comm, on Stat. & Const. Constructions, 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 courtis 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 *60any 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 as an authority to compel the trial of a cause pending in a circuit court in v the manner prescribed by said section, if either party to such a suit objects to such a trial. Ex parte Roundtree, at the present term.
But this section of the Code authorizes the parties to the suit, when there is no objection, and the parties consent to it, to adjudicate the suit under the provision of said section as in a court'of quasi arbitration ; and from the award or judgment of such tribunal an appeal may be taken to the supreme court. Alabama & Florida R. R. Co. v. Burkett, 42 Ala. 83.
For the reasons above stated, a circuit judge, who refuses to enforce the remedy under said section 758 of the Revised Code, will not be forced to do so by a mandamus.
The application is denied, with costs.