“The legislature cannot do indirectly that which it is forbidden to do directly.” Ex *715parte State ex rel. Patterson, 268 Ala. 524, 108 So.2d 448; Montgomery v. State, 231 Ala. 1, 163 So. 365. In the early case of Sanders v. Cabaniss, 43 Ala. 173, this court stated: “It is a very clear proposition, that what cannot lawfully be done directly, cannot be done indirectly — no device, though it be so cunningly contrived as to make wrong appear to be right, can justify it.” This statement is quoted and followed in State ex rel. French v. Stone, 224 Ala. 234, 139 So. 328. All of these cases held that a legislative enactment was unconstitutional.
Amendment 92 to the Alabama Constitution of 1901, known as the “Boutwell Amendment” was ratified in 1952 and it provides, in part, that the legislature shall not increase the salary of a state or county officer, who is elected for a fixed term, during the term for which he is elected or appointed (subject to one exception not here applicable).
Every single change in the court that was made by Act 1176 could have been made by amendments to the then existing law governing the Colbert County Law and Equity Court, but the immediate salary raises to the officers of that court would have been patently unconstitutional because they were contrary to Amendment 92. So the existing court was abolished and another court with a different name was created and the same judge and solicitor of the abolished court were named in Act 1176 as the respective judge and solicitor of the new court.
In Carnley v. Moore, 218 Ala. 274, 118 So. 409, some twenty-four years before Amendment 92 was ratified, the Act before the court divided Coffee County into four commissioners districts, provided for the election of a commissioner from each district, provided for staggered terms, purported to impose additional duties and increased their compensation. This court said:
“The claim or compensation sought by the official was likewise offensive to the provisions of sections 68 and 281 of the Constitution, being in the nature of an increase of the county official’s compensation during the ‘term of his office’, =(= * *
“ * * * We are of opinion that the act in question was a mere effort or colorable pretext to increase the compensation of the county commissioners, and not within the decision of Tayloe v. Davis, 212 Ala. 282, 102 So. 433, 40 A.L.R. 1052. * * *”
In Tayloe v. Davis, supra, it was held that the compensation of a public officer could be increased during his term to compensate him for added duties placed upon him. From then until 1951, many Acts of the Legislature were concerned with adding additional duties and increasing salaries of city, county and state officials. In 1951, to curb this type of legislation, the “Boutwell Amendment” was passed and it was submitted to the people and ratified in 1952.
It is my opinion that Act 1176 “was a mere effort or colorable pretext to increase the compensation” of the solicitor, even though his office would be abolished at the end of what would have been his term of office under the former Act.
In 67 C.J.S. Officers § 95a, p. 343, the text reads:
“Provisions prohibiting a change in compensation have been held to be mandatory and to prevent either direct or indirect changes; they may not be dispensed with, circumvented, or ignored. * * *»
That statement is supported by the cases, cited in the notes and by our case of Carnley v. Moore, supra.
I would hold that the attempt to immediately raise the solicitor’s salary (he has not yet received the raise and no longer holds the office) is contrary to Amendment 92 and, therefore, void and without effect.
In every regular session of the Legislature, Acts pertaining to the salaries of county officers are passed, which, if con*716tested, would be held to be unconstitutional, some because of the reason in Carnley v. Moore, supra, and others because they are not general bills with local application and were not advertised as required by Section 106 of the Constitution. But before the courts can rule on those Acts, they must be contested by someone with authority so to do. Here, the members of the County Commission of Colbert County did contest the salary raise to the solicitor and they had the authority to question the payment of county funds for that purpose. I think they were correct in raising the constitutional question and that the better position of courts is to uphold the Constitution rather than further encourage its circumvention by indirect changes or methods or other violations of the Constitution.
I respectfully dissent.
McCALL, J., concurs in this dissent.