There are three decisions by this court interpreting and applying the provisions of the statute authorizing the consolidation of "causes of like nature or relation to the same question," pending in the Circuit Court of Jefferson County. Two dealt with common law actions for damages growing out of automobile collisions and the other a bill in equity. The first, Ex parte Ashton, 231 Ala. 497, 165 So. 773, 104 A.L.R. 54, was an original application here for mandamus to compel the circuit court to vacate an order consolidating two pending actions for damages growing out of the same automobile collision, in each of which negligence was the basis of the cause of action. The court held that said cases were within the influence of the statute and that the motion to consolidate was addressed to the discretion of the trial court and would not be reviewed on mandamus in the absence of showing the court had abused its discretion. The second, Altman v. Barrett et al.,234 Ala. 234, 174 So. 293, 295, was a bill in equity to quiet title, wherein the court said: "* * * When he [complainant] files a suit as to various tracts alleging that each has a cloud on it by virtue of a separate fraudulent conveyance to a different party, involving separate transactions and parties, his bill is multifarious. * * *. [Brackets supplied.]
"When so, and a demurrer is sustained to it, whether on that ground or not, it should not be transferred to the law docket under section 6486, Code [Code 1940, Tit. 13, § 149], since it is not of such sort that the suit could proceed at law. After such transfer it would be subject to the objection that there is a misjoinder. For under the Act of September 13, 1935 (Gen. Acts 1935, p. 1010 [Code 1940, tit. 7, § 221]), the court should not permit a joinder or order a consolidation such as will 'bring about a complication of issues of fact, embarrassment or delay in the trial, (and) difficulty to the parties, the jury, and the court.' Ex parte Ashton, 231 Ala. 497,501(8), 165 So. 773, 776, 104 A.L.R. 54."
The third and last case, Ex parte Mount, 242 Ala. 174,5 So. 2d 637, was an original petition for mandamus to compel the Circuit Court of Jefferson County to make an order of consolidation of two or more actions growing out of the same automobile collision. The court held in that case that this controversy was within the statute, but the question as to whether or not the order should be made in the circumstances stated in that opinion was addressed to the sound discretion of the trial court and the court's refusal to make the order of consolidation could not be reviewed by mandamus.
In Ex parte Ashton, 231 Ala. 497, 165 So. 773, 104 A.L.R. 54, the opinion quoted from the case of Adler v. Seaman et al., 8 Cir., 266 F. 828, 830, (a bill in equity) and an examination of the opinion in that case shows that the part quoted was from a dictum. The court was dealing with interventions in equity and the opinion observed: "The motions to which this order responded were expressly based upon equity rule 37 [Code 1940, tit. 7 Appendix] * * *. The words of each motion are, in this respect, identical and are 'to treat said cause No. 5068 (Adler suit) as an intervention in said cause No. 4820 (Seaman suit), and to consolidate the same under equity rule 37 with said cause No. 4820 * * *." The part quoted from the dictum is as follows:
"Consolidation of separate and distinct causes pending in the same court is, in federal courts, authorized by section 921 of the Revised Statutes [28 U.S.C.A. § 734]. In its conception that statute was designed for the sole purposes of saving the time of the court and the costs to the litigants. As originallyenacted in 1813 (3 Stat. 21) it was one of three sections in an act dealing with costs. Under its beneficent provisions, not only may cases affecting the same property, title, res, or fund be thus brought together and tried at one time, but cases unrelated in right or *Page 342 liability, but connected by some common controlling issues orfacts, which can conveniently be heard and determined by a jury or a chancellor at one hearing. * * *" [Italics supplied.]
The question presented in the instant case is whether or not these eight prosecutions for violating municipal ordinances are within the influence of Section 221 above cited. The respondent insists that inasmuch as our act was in substance the same as the Federal Statute that we are bound by the Federal decisions applying that statute to criminal cases, and to sustain this proposition cites Jarvis v. United States, 1 Cir., 90 F.2d 243, decided in May, 1937, certiorari denied Oct. 11, 1937,302 U.S. 705, 58 S. Ct. 25, 82 L. Ed. 544. Those cases are without influence for the reason that they were decided after the enactment of our statute, now Section 221, Tit. 7, Code 1940.
In Brown et al. v. United States, 143 F. 60, 62, Judge Van Devanter, then on the Eighth Federal Court of Appeals, afterwards on the Supreme Court of the United States, observed: "Over the objections of the defendants, the three indictments were tried together. A separate verdict of guilty was returned on each of the seven counts and a single and separate sentence was given for the offenses charged in each indictment. * * * The court was invested with a discretion to direct that the indictments be thus tried together independently of any statuteupon the subject (Logan v. United States, 144 U.S. 263, 306,12 S. Ct. 617, 36 L. Ed. 429), and this discretion was not affected by the limitation in section 5480 because it has reference to the joinder of offenses in such manner as will upon the trial restrict the rights of the defendant to what they would be if he were being tried for a single offense, and not to a joint trial of separate indictments in which the defendant is accorded all the rights to which he would be entitled if the indictments were tried separately. * * *" [Italics supplied.]
In Logan v. United States, 144 U.S. 263, 295, 296,12 S. Ct. 617, 627, 36 L. Ed. 429, it was observed: "Congress has enacted that, 'when there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate counts; and, if two or more indictments are found in such cases, the court may order them to be consolidated.' Rev.St. § 1024 [18 U.S.C.A. § 557]."
In McElroy v. United States, 164 U.S. 76, 17 S. Ct. 31, 33,41 L. Ed. 355, the court speaking through Chief Justice Fuller observed: "While the general rule is that counts for several felonies of the same general nature, requiring the same mode of trial and punishment, may be joined in the same indictment, subject to the power of the court to quash the indictment or to compel an election, such joinder cannot be sustained where the parties are not the same, and where the offenses are in nowise parts of the same transaction and must depend upon evidence of a different state of facts as to each or some of them. It cannot be said in such case that all the defendants may not have been embarrassed and prejudiced in their defense, or that the attention of the jury may not have been distracted to their injury in passing upon distinct and independent transactions. The order of consolidation was not authorized by statute and did not rest in mere discretion."
So far as we have been able to find, consolidation of criminal cases had never been authoritatively rested upon Section 734, Tit. 38, United States Judicial Code (U.S.C.A.) by a court of last resort, prior to the enactment of our statute in 1935, Code 1940, Tit. 7, § 221, and our statute must be interpreted in the light of the practice and terminology applied to prosecutions of this character by our court.
As stated in the original opinion, actual possession of the prohibited document, is the very gist of the offense denounced by Section 600 of the City Code of Birmingham. This is demonstrated by the fact that said section provides that: "Thepossession forbidden by this section shall not apply to possession had by a police officer, sheriff, deputy sheriff or other peace officer, judge or attache of a court or an attorney when such possession is connected with the prosecution or other investigation of a violation of this section." [Italics supplied.] Each such possession within the condemnation of the ordinance constitutes a separate and distinct act or transaction and each person charged is entitled to a separate verdict and a separate *Page 343 judgment of acquittal or conviction. The terminology applied to proceedings for violations of criminal ordinances is "a prosecution," and the municipality, on grounds of public policy, is not liable for costs incurred in such prosecution. City of Selma v. Stewart, 67 Ala. 338, 340; Town of Camden v. Bloch, 65 Ala. 236; City Council of Montgomery v. Foster,54 Ala. 62.
In such "prosecution" the defendant has a right under the constitution to demand the nature and cause of the accusation, and for such offense a warrant cannot issue for an arrest without oath or affirmation showing probable cause. Rhodes v. McWilliams, 16 Ala. App. 315, 77 So. 465; Ex parte Rhodes,202 Ala. 68, 79 So. 462, 1 A.L.R. 568; City of Selma v. Stewart, supra; Birmingham v. O'Hearn, 149 Ala. 307, 42 So. 836, 13 Ann. Cas. 1131. In such case, where the person is arrested without warrant, he cannot lawfully be imprisoned by the municipal authorities without judicial intervention, "unless circumstances rendered his imprisonment necessary." Hayes v. Mitchell, 69 Ala. 452. And at the end of the prosecution, if the defendant is convicted, he is subject to involuntary servitude, hard labor, or fine and imprisonment, as a punishment for the offense.
The municipality, not being subject to a judgment for costs when it fails to secure a conviction, should not be disturbed about costs. If the defendant is convicted, he can be compelled to pay the costs or required to work them out with his fine.
The court is created and exists for the sole purpose of administering justice without regard to time or costs and "without sale, denial or delay." Constitution 1901, § 13.
In the light of this history, we are persuaded that, the legislature did not intend that said section 221 should be applied to such prosecutions, and that the order of the circuit court consolidating the eight prosecutions was improvident, ill-advised and should be vacated. A peremptory writ of mandamus, therefore, is hereby ordered to issue, requiring the vacation of the order of consolidation.
Application for rehearing overruled.
GARDNER, C. J., and THOMAS, FOSTER, LIVINGSTON, and SIMPSON, JJ., concur.