On Application for Rehearing.
LIVINGSTON, Chief Justice.The application for rehearing contains matters which have already been discussed in the opinion of the court and the application for rehearing is overruled.
Appellants have filed a motion “to strike and set aside the decision rendered in this cause” on the ground that the opinion was prepared by Honorable B. W. Simmons instead of being prepared by a justice of this court. Judge Simmons, a supernumerary circuit judge, is and has been serving with the Supreme Court at the request of the Chief Justice under the provisions of Act No. 41, Acts of Alabama 1961, Vol. II, p. 1895, approved September 15, 1961.
The motion is denied.
Appellants cite Sec. 152 of the Constitution of Alabama of 1901, which requires that the .justices of the Supreme Court be elected by the qualified electors of the state; and the Opinion of the Justices, 252 Ala. 543, 41 So.2d 907, which expresses the opinion that constitutional judicial officers may-be appointed only in the manner provided in the Constitution. We agree with the two authorities cited, but they are not decisive of the matter before us.
A supernumerary circuit judge serving with this court under Act No. 41, supra, or a supernumerary justice serving with this court under Tit. 13, §§ 31, 32 and 33, Code 1940, as amended, is neither a member nor a justice of this court. He does not have a vote on cases or court matters, and opinions prepared by him are submitted to the court and, if approved and adopted by a majority of the justices, they become the opinions of the court.
Because of his experience as a justice or as a circuit judge, a supernumerary justice or a supernumerary judge is qualified to help the court by studying briefs and records and preparing opinions for the consideration of the justices of the court. This is and has been a great help to the court in reducing the backlog of older cases.
The supernumerary justice or judge prepares a proposed opinion and presents it to a majority of the court. This opinion may be accepted, rejected, changed or modified, but the final opinion is that of the court, and the names of at least four concurring justices appear in every such opinion.
The preparation of an opinion is not a simple matter and usually involves days of work, and the supernumerary justice or judge preparing it, or most of it, ought to receive recognition. For that reason, the statement is made at the end of the opinion that it was prepared by him, but the opinion is the opinion of the justices who are shown concurring in the opinion, and therefore the opinion of the court.
In view of the fact that Supernumerary Circuit Judge Simmons is neither a member nor a justice of the court, and the opinion prepared by him in this case is the opinion of the court, the motion has been denied.
All the Justices concur.