In pursuance of an election by the qualified voters of Jefferson county, held on the first Monday in May, 1873, as authorized by the Act approved March 5, 1873 (Acts of 1872-73, pp. 231-236), the city of Birmingham, as then incorporated, was established as the county seat of Jefferson county.
The major question presented is whether or not the commission named in the Act approved February 11, 1927, providing for the construction of a courthouse and jail, "in the city of Birmingham," and empowering said commission to select a courthouse site, is acting within the authority conferred by the act in selecting a site not wholly within the original corporate limits of the city of Birmingham as fixed by the Act of December 19, 1871, incorporating that city (Acts of 1871-72, p. 229), which was in force at the time the city of Birmingham was established as the county seat of Jefferson county.
This question is ruled by the case of Marengo County v. Matkin, 134 Ala. 275, 32 So. 669, holding that, when an incorporated city or town is selected as the county seat of a county, the boundaries of such city or town, as they then existed, become the boundaries of the county seat, and the subsequent inclusion of more territory in such city or town by the extension of its corporate limits does not enlarge the county seat, and the Constitution inhibits the removal of the courthouse *Page 515 of the county beyond the boundary of the county seat so established, unless its removal is authorized by a majority vote of the qualified electors of the county voting at an election held for such purpose. Constitution of 1901, § 41.
The case of Marengo County v. Matkin, supra, was in no sense modified by the subsequent decisions of this court in the cases of Merchants' Nat. Bank of La Fayette v. McNaron, 172 Ala. 469,55 So. 242, and Board of Revenue of Jefferson County v. Huey,195 Ala. 83, 70 So. 744.
Section 41 and subdivision 11 of section 104 of the Constitution are clear limitation on the power of the Legislature to authorize a change in the county seat or a removal of the courthouse from the established county seat, unless such change is authorized by the electorate of the county, as authorized by the Constitution, and as provided by the general law of the state. It is too clear to require the citation of authority that what the Legislature is prohibited from doing directly it cannot do indirectly by authorizing the act to be done by a commission of its creation.
It must be assumed that the Legislature in the passage of the Act approved February 11, 1927, which empowers the commission therein named "to construct or cause to be constructed a courthouse and jail for said county in the city of Birmingham, Alabama," was familiar with the construction of section 41 of the Constitution pronounced in Marengo County v. Matkin, supra, and, to save the act from constitutional objection, it will be construed as limiting the power of the commission in selecting the site of the new courthouse to one within the limits of the county seat as defined by the act approved December 19, 1871, incorporating the city of Birmingham. Matkin et al. v. Marengo County et al., 137 Ala. 155, 34 So. 171.
The foregoing is sufficient to show that we are of opinion that the circuit court erred in sustaining the demurrers to the bill, and the decree is reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.