This proceeding concerns action by a judge of probate upon a petition or application for bail as distinguished from an habeas corpus to admit to bail. In Callahan v. State, 60 Ala. 65 (particularly page 72), this court held, speaking through STONE, J., that these two systems were distinct, "independent"; and there has been no such subsequent change in the pertinent statutes as to avert the conclusion thus stated in Callahan v. State, supra. Indeed, their repeated re-enactment, in the light of the settled construction thus taken in the Callahan Case, effected, under familiar doctrine, to constitute that conclusion a part of the systems. While an appeal by the state is provided from an order admitting to bail in an habeas corpus proceeding, no right of appeal is or has been given the state from an order admitting to bail in *Page 13 response to an application for bail under that "independent" system, viz. Code, § 6331 et seq. Instead of a right of appeal being given, the state from the allowance of bail in response to an application for bail (under section 6331), Code, § 6335, only confers the right of appeal upon a refusal to admit to bail, thus restricting the right of review by appeal to him whose application for bail is denied.
I concur with Justices SOMERVILLE and THOMAS in their construction of the term "bailable felony," as employed in Code, § 6331, when considered in connection with the provisions of section 6335.
The power and authority of a judge of probate to entertain, hear, or determine an application for bail, is only conferred "in vacation," necessarily referring to the court to which the indictment is returned. Vacation was long since well defined in Ex parte Branch, 63 Ala. 383, 386. It is a period, or periods, intervening between terms of court. The act approved September 22, 1915 (General Acts, pp. 707, 708), provides that the circuit courts "shall be open" throughout the year except for very short periods in July and December of each year. The application for bail in this instance was made to Judge Troup in term time of the circuit court, and not in vacation; and hence the judge of probate was without power or authority, in any event, to entertain the application for bail under Code, § 6331 et seq.
These considerations lead me to concur in the conclusion to which the majority of the court gives its approval.