(dissenting). — I cannot concur. I have examined the subject ás thoroughly as I am capable of doing, and the following are my views on the subject. I concede that the majority are much more apt to be correct, but I am nevertheless convinced beyond a reasonable doubt that they are in error, for the following reasons:
The majority have misconstrued the nature and purpose of the proceeding in question. The proceeding in the lower court, and in this court on the original hearing, was not to test the constitutionality of the statute declared void on this application for rehearing, but, on the contrary, was to determine which of two or more persons were entitled to hold office under this very statute until the general election of 1916, at which time the successors were to be elected. It is true that constitutional objections were raised as to certain sections of the act, but not as to the whole act; in fact, the trial court and this court hold one of the sections in question valid, and hold that, if the others were 'pronounced void, it would not affect the whole statute nor the result of this suit.
It was specifically alleged that the act in question became a law, save as to the sections complained of, and the demurrers of course confessed this allegation: Then how or why should the trial court rule against what was alleged by one party and confessed by the other, and award relief not only not asked but inconsistent with that asked? In order that there may be no dispute as to this, I here set out the allegations to this end. After alleging.that plaintiff held another office, that of a member of the board of revenue, until that office was abolished, the information or complaint proceeds to recite that: The plaintiff exercised the powers, discharged the duties, and received the emoluments of said office from the 2d day of January, 1915, continuously “until the enactment into law of an act of the Legislature of Alabama entitled ‘An act to establish the court of county commissioners for Covington county, Alabama,’ which last-named act, *551among other things,- abolished the said board of revenue and provided that the officers of said board of revenue who may be in office at the time this act goes into effect shall constitute such respective officers of this said court, *' * * and therefrom continuously performed and exercised the duties, rights, and powers and received the emoluments of the office of associate county commissioners of the court of county commissioners of Covington county, Alabama, up to and including the 8th day of November, 1915, and-was and is entitled, under the Constitution and laws of the state of Alabama, including said last-named act of the Legislature, to hold and possess said office of associate county commissioner of the court of county commissioners of said Covington county, and to perform and exercise the duties, rights, and powers and receive the emoluments of the same, until his successor shall be elected at the general election of 1916, and is qualified, as provided for in said last-named act.”
On appeal to this court no question can be raised, even on the original hearing here, which was not raised in the trial court. The trial in this court is not de novo. This court has no jurisdiction or right to decide questions on appeal which were not raised in the court below. This is not a rule of propriety or of practice; it is one of jurisdiction and power. On appeal we can only review the questions raised and decided in the court below. I do not understand that the majority deny this last proposition, nor that they now intend to decide to the contrary; but; in my judgment, they do inadvertently decide to the contrary. If I correctly understand the position of the majority, it is that the question now decided was raised in the court below, and therefore necessarily there decided. In my judgment, the error of this position is affirmatively shown by an inspection of the record.
This is not a common-law quo warranto proceeding; it is a statutory civil action. This distinction has been repeatedly pointed out by this court. In quo warranto proper it is sufficient to allege that the respondent is usurping the office of franchise, whereupon the burden or duty rests on him to show his right to hold, or to exercise; but in this statutory civil suit between two parties all the rules of civil pleading and practice prevail.
In the case of Ham v. Buck, 156 Ala. 645, 47 South. 126, this distinction is clearly pointed out by Justice Denson, and the authorities there collected verify the correctness of the holding. It is there said: “Section 3 of the information or complaint alleges *552that the respondent usurps, unlawfully holds, and exercises the office of .mayor of the town of Elba, which is a public and civil office within the state. In the cases of usurpation and ouster it has been expressly decided that these averments are-sufficient against demurrer.—Jackson v. State, etc., 143 Ala. 145, 42 South. 61; Frost v. State, etc., 153 Ala. 654, 45 South. 203. But, when there is sought by this proceeding, ‘not only the exclusion of the defendant from the office in controversy, but the installation of the relator, the proceeding is essentially and practically a civil suit, wherein the complaint should set out the facts upon which the relator relies to sustain his title to the office, and so far as practicable, specify the objections intended to be made to the title of the respondent.’— State v. Price, 50 Ala. 568; State, ex rel. Goodgame v. Matthews, 153 Ala. 646, 45 South. 307. And the statute (Civ. Code, 1896, § 3428) requires that ‘the complaint in such action must concisely and clearly set forth the act or omission complained of.’—State, ex rel. Johnson v. Sou. B. & L. Ass’n, 132 Ala. 50, 31 South. 375; L. & N. R. R. Co. v. State, ex rel. Gray, 154 Ala. 156, 45 South. 296.”
Each of the authorities cited supports the holding.
The rule was first announced in the case of State v. Price, 50 Ala. 571, where it is said: “The proceeding under our statute commonly called quo warranto, when it seeks, not only the exclusion of the defendant from the office in controversy, but the installation of the plaintiff, is essentially and practically a civil suit, wherein the complaint should set-out the facts upon which the plaintiff relies to sustain his title to the office, and, as far as practicable, specify the objections intended to be made to the title of the defendant. The observance of this rule would save defendants much vexation and expense by apprising them at once of what they had to defend.”
These statutes have been frequently readopted with this construction placed upon them, and, in my judgment, we ought not now to depart from them.
Under these rules and this interpretation it seems to me that there can be no doubt that the trial court ruled correctly on the demurrer, and that, as the appellant declined to amend or to plead further, no’ other course was open to the trial than to dismiss the plaintiff’s suit.
What the journals of the Legislature show .or do not show is a question of fact, and not of law. It is true that courts take *553judicial notice of what these journals show, but they are not required to examine them, nor to declare what they show, nor to ascertain or decide what they show, until called upon in the proper mode and on the proper occasion. It is very true that this is often spoken of as a question of law, but this is merely to distinguish it from questions which the jury pass upon. In this sense only' is- it a question of law. For example, whether or not a given bill was referred to a standing committee is of necessity a question of fact, and not of law. But for Constitutions, that question would have to be found by a jury, because a disputed question of fact. Our Constitution, however, requires the fact of reference to appear on the journals, and therefore limits the proof of the fact to this written document; and the construction of any written document is a question for the court, and not for the jury.
Appellate courts, when exercising purely appellate jurisdiction, as in this cause, have no jurisdiction or power to consider evidence not before the trial court, or to decide questions of law not raised, and therefore not passed upon, in the court below, not even a constitutional question involving the validity of a statute. The following is what this court has heretofore said on this subject.
In Sigsbee’s Case, 160 Ala. 196, 48 South. 843, this exact question was presented and considered and decided; and, in my judgment, the decision and opinion then rendered are correct. As the opinion in that case is short, but in point and conclusive, I here set it out: