The judgment from which the State seeks appeal is as follows:
"On this the 20th day of September, 1950, comes the State by its Solicitor, and the defendant in his own proper person and by attorney. Defendant files Motion to Quash the Affidavit and Solicitor's information. It is therefore ordered and adjudged by the Court that the defendants motion be and the same is hereby granted on grounds that the regulation complained of is beyond the power of the Director of the Department of Conservation as set out and defined in Title 8 Section 17 and 21 of the Alabama Code.
"Question of Law having been reserved upon the trial of this case for the consideration of the Court of Appeals and the State having made known its desire to prosecute an appeal from this judgment. It is therefore ordered and adjudged by the Court that the defendant be held under the present bond pending said appeal."
Grounds 2 and 3 of the Motion to Quash read as follows:
"2. Because Section 17 of Title 8 of the Code of Alabama gives no authority to said Director of Conservation to promulgate or adopt such rule or regulation.
"3. Because Section 21 of the Code of Alabama of 1940 only authorizes the making of rules and regulations by said Director of Conservation for the preservation, protection, propagation and development of fish within the State of Alabama and gives no authority to fix the place by rule or regulation where fish may be caught or taken from the water of Guntersville Lake."
Section 370, Title 15, Code 1940, reads: "In all criminal cases when the act of the legislature under which the indictment or information is preferred is held to be unconstitutional, the solicitor may take an appeal in behalf of the state to the supreme court, which appeal shall be certified as other appeals in criminal cases; and the clerk must transmit without delay a transcript of the record and certificate of appeal to the supreme court."
It was held in West v. State, 242 Ala. 369, 6 So.2d 436, that when an act of the legislature expressly declares that the rules and regulations therein referred to shall have the force and effect of law, its status is as a public statute in this respect. § 21, *Page 395 Title 8, Code 1940, provides in part as follows: "The director of conservation is authorized to make and promulgate such reasonable rules and regulations not in conflict with the provisions of the game and fish laws as he may deem for the best interest of the conservation, protection and propagation of wild game, birds, animals, fish and sea food, which rules and regulations shall have the force and effect of law; * * *."
It follows, therefore, in my opinion, that when the trial court declares a rule or regulation promulgated by the Director of Conservation to be unconstitutional, the State may appeal under the provisions of § 370, Title 15, Code 1940. See State v. Keel, 33 Ala. App. 609, 35 So.2d 625; State v. Vaughan,30 Ala. App. 201, 4 So.2d 5, certiorari denied, 241 Ala. 628,4 So.2d 9.
In holding that the Director of the Department of Conservation was without power to promulgate the regulation, the trial court, in my opinion, in effect held the regulation to be unconstitutional. I am of the opinion, therefore, that the State can appeal from the judgment rendered by the circuit court of Marshall County.
I do not think that this conclusion is in conflict with the holding of this court in State v. Martin, 243 Ala. 464,10 So.2d 673, wherein approval was given to the conclusion reached by the Court of Appeals, Id., 30 Ala. App. 466, 10 So.2d 671. As I understand the opinion of the Court of Appeals, its holding that the State could not appeal was predicated on the fact that the action of the trial court in sustaining the demurrer was not shown to be based on those grounds of the demurrer raising the constitutional question.
I am constrained, therefore, to disagree with the holding of the majority. It is my opinion that the State has the right to appeal from the judgment rendered by the circuit court of Marshall County.
LIVINGSTON, C. J., concurs in the foregoing.