ON REHEARING.
MCCLELLAN, J.(l-B) The rule in proceedings of this character (quo warranto), where the respondent admits that he is holding and exercising the powers and duties of the office, devolves upon him the burden of showing by what, authority he holds the office, and that he is in the rightful exercise of its duties and powers. The state has the undoubted right to require of every one who claims to hold and does hold a public office under its statutory or constitutional provisions to show a lawful authority for the exercise of its powers and privileges, and this rule is not changed by statutory provision which permits a private person to join with the state in the inquiry by quo warranto.—Montgomery v. State, ex rel., 107 Ala. 372,, 384, 18 South. 157; Jackson v. State, ex rel., 143 Ala. 145, 147, 42 South. 61; High’s Extra. Rem. 629. The information in such a proceeding is sufficient' if it avers in general terms, designating the particular office, that the respondent usurps, intrudes into, and unlawfully holds the same.—Jackson v. State, ex rel., supra. The statutory system provided in chapter 128 of the Code (section 5450 et seq.) contemplates an appeal from a judgment vindicating the respondent’s right to hold the office or declaring him an intruder therein. *547—Code, §§ 5465, 5469, 5470, 5471. Nevertheless this court has ruled that the statutory system is complete and exclusive, and that the information only (complaint) is a pleading in a civil proceeding, and is demurrable for insufficiency.—L. & N. R. R. Co. v. State, ex rel. Gray, 154 Ala. 156, 198, 199, 45 South. 296; Code, § 5461. It is manifest that, whatever may be requisite in other circumstances brought to view by quo warranto, a complaint or information calling into question the rightfulness of one’s occupancy of a public office is sufficient if it meets the simple requirements set forth in Jackson v. State, ex rel., supra.
(4) The petition filed by this appellant designated the office in which the appellees (respondents) were alleged to be intruders, thereby, if nothing else had been averred, affecting, under the established rule of Montgomery v. State, ex rel. and others supra, to place the burden upon the.respondents to fully set forth the authority by which they severally held the office, unless, for the purposes of the hearing and adjudication of the inquiry, they (respondents) were content to accept the status shown by the petition and to submit the decision of their right to hold the office upon the status disclosed in the petition. The petition asserted that the respondents attributed their right to the office to the provisions of, and an election held under, the act entitled “An act to establish the court of county commissions for Covington county, Alabama,” to be found in Local Acts 1915, pp. 98-103, which, the petition alleged, was unconstitutional and void, for the reasons stated in the opinion of Justice Mayfield delivered upon the original submission. The respondents separately demurred to the petition. The court sustained the demurrers, and, the petitioner declining to plead further, the court rendered a judgment dismissing the petition and taxing the petitioner with the costs. The judgment thus rendered was final under our complete, exclusive statutory system. See L. & N. R. R. Co. v. Gray, supra. It may be that the judgment dismissing the petition and imposing costs, if affirmed in this court, would be res judicata of the respondents’ rightful occupancy of the public office in question — a point not necessary to be decided on this appeal, the proceeding being in the name of the state.—City Council v. Walker, 154 Ala. 242, 45 South. 586, 128 Am. St. Rep. 54.
(5) The reasons assigned in the petition for the petitioner’s averment of the constitutional invalidity of the act to which the *548respondents attribute their rights to the office were not well founded. In the application for rehearing the appellant for the first time asserts the failure to observe section 62 of the Constitution in the passage of the act in the Senate as a ground for declaring the act invalid. That section (62) positively requires the reference of each bill to a standing committee, and that the journals affirmatively show that fact. The journal of the Senate does not affirmatively show, as the Constitution prescribes, the reference of the act to any standing committee. In these circumstances the act never became a law.—Walker v. City Council, 139 Ala. 468, 473, 474, 36 South. 23; Tyler v. State, 159 Ala. 126, 48 South. 672; Dunn v. Dean, Judge, etc., infra, 71 South. 709, opinion on rehearing.
In State, ex rel. Sigsbee v. City of Birmingham, 160 Ala. 196, at page 202, 48 South. 843, at page 845, it was said: . “As the only constitutional question presented by the demurrer is whether the act of August 8, 1907, is violative of section 104, par. 29, of the Constitution, and that was the only question considered by the court below and in the argument of the case here, we cannot consider other constitutional questions suggested to us.”
(6, 8) Unless essential to the decision of an actual case, the constitutionality of an enactment will not be considered or determined by this court.—State, ex rel. Crumpton v. Montgomery Excise Com’rs, 177 Ala. 212, 220, 221, 59 South. 294. This rule is, of course, without force or application where the appeal cannot be determined without taking due account of the constitutional validity of an enactment. It is a further rule, long established in this court at the suggestion of safety and convenience in respect of the performance by this court of the grave duty of deciding the constitutional validity of enactments, that this court will not “search for constitutional objections * * * on a general suggestion of unconstitutionality, without more; otherwise this court would, upon every such suggestion, be put to the necessity of searching .the original journals of both branches of the Legislature to inquire into the history of the act from its introduction into that body to its final passage and approval. This is a duty that rests upon .the complaining party, and not upon the court.” (Italics supplied.)—Fitzpatrick v. State, 169 Ala. 1, 53 South. 1021; State, ex rel. v. Montgomery Excise Com’rs, supra.
*549Where the determination by this court of questions involving matters of public concern cannot be had without the consideration and decision of the constitutional validity of enactments, this court must, in the discharge of its grave duty in that regard, take account of such questions, whether raised or argued in the lower courts or not, and decide them, provided the complaining party manifests his good faith and diligence by affording the essential data to advise the court in the premises and to relieve it of the burden of itself making a search of the journals to ascertain the true status of the subject of his complaint. The quotation before made from the Sigsbee Case is not in accord with these conclusions; and so to that extent that opinion must be, and it is, qualified.
The petition under consideration brought into question the constitutional validity of the act of 1915, but the reasons therein assigned for the assertion of its invalidity were not good. A general objection by demurrer that an act is unconstitutional has been accepted here as at least raising the issue of constitutional validity vel non.—Beauvoir Club v. State, 148 Ala. 643, 650, 42 South. 1040, 121 Am. St. Rep. 82; Montgomery v. Birdsong, 126 Ala. 632, 648, 28 South. 522; Bay Shell-Road Co. v. O’Donnell, 87 Ala. 376, 6 South. 119. Since the petition would have been and was sufficient under the rule of pleading stated ante as from Jackson v. State, supra, and since the general allegation of the unconstitutionality of the act was efficient to invoke and to have justified a ruling, if made, of the court below that the act was invalid, not for a reason alleged, but on a ground or for a reason not particularly specified in the petition, the judgment now rendered cannot be affirmed here when, even for the first time on application for rehearing, the complaining party has fully met the burden of advising the court of the particular well-founded reason or ground for declaring the act invalid. If any other view should be accepted, this court would be placed in the wholly .indefensible attitude of affirming a judgment that this court now is brought to know cannot be sustained because the essential basis thereof is an enactment that never became a law. If the trial court had overruled the- demurrer, this court could not have pronounced prejudicial error of it.—Bay Shell-Road Co. v. O’Donnell, supra.
■The act. under or in consequence of which appellees can alone assert a right to their offices being void, and the fact of invalidity *550being shown, though much belated, to this court, it follows that the application for rehearing must be granted, and that the judgment be reversed. The cause is remanded that appropriate effect may be given these conclusions by the court below.
Reversed and remanded. All the Justices concur, except Mayfield and Gardner, JJ., who dissent.