[Seymour v. State.] this fine and costs, judgment was rendered against him by the court below; from which judgment he appeals to this court. Here, the errors insisted on are the same matters that were assigned for causes of demurrer to the indictment; that is, that the act of the general assembly of this State, under which the accused was indicted, is unconstitutional and void. There can be no doubt, that a law which is unconstitutional is utterly void, and the courts may so declare it; and such a law cannot create an offence, for which a person accused under it can be convicted and punished. 1 Kent, 448, 449; Marbury v. Madison, 1 Cr. 137. The act referred to in the defendant's demurrer is the revenue law of this State, entitled "An act to establish revenue laws for the State of Alabama," approved December 31, 1868. Session Acts 1868, pp. 297 et seq. Section 105 of this act declares, "That it shall be unlawful for any person, firm, company, or corporation, to engage in or carry on any business or profession herein mentioned, without first having paid for and taken out license therefor in the manner hereinafter provided." Acts, supra, p. 320, § 105. A violation of this act is made a misdemeanor, and it subjects a person found guilty under it to a fine of three times the amount of the license required to be paid for and taken out, and also to confinement "in the county jail, not exceeding one year, at the discretion of the court." Acts, supra, p. 330, § 111. In such a case as this, the price of the license is fixed at forty dollars. Acts, supra, p. 333, cl. 22 of sect. 112. This act does not contain any exceptions, or any discriminations in favor of any class of persons, or any business or professions. It is a law to raise revenue for the support of the state government. would be a waste of argument to discuss the validity of such a law. It was passed by the State under the exercise of a power universally admitted to be legitimate. Blackwell on Tax Titles, p. 2; Osborne v. Mayor & Aldermen of Mobile, 44 Ala. 493; Osborne v. Mobile, 16 Wall. 479. It It is evident that the revenue law of December 31, 1868, above cited, when it was passed, was free from all constitutional objection. This does not seem to be denied. But it is contended, that the character of this law has been since altered. by an act of the general assembly of this State, entitled "An act to authorize manufacturers and makers to peddle the products of their various making without license," approved on March 2, 1871. Omitting the enacting clause, this statute is in these words: "That from and after the passage of this act, it shall be lawful for all persons to peddle and sell, without a license, all things made or manufactured by them in this State, or may peddle them by an agent, any law to the contrary not [Seymour v. State.] withstanding." The most that can be said of this latter enactment is, that it is a law to encourage manufacturing in this State. This act took effect from the day of its approval. Acts of Ala. 1870-1871, p. 10, No. 12; 1 Kent, 454; Matthews v. Zane, 7 Wheat. 164. This last named act can hardly be classed as a part of the revenue law of this State. It is only a law modifying the general law upon the subject of peddling, and, as such, it may be entitled to be construed in connection with that law. All laws upon the same subject are to be construed as parts of one enactment. 1 Kent, 463; Dwarris, 569; United States v. Freeman, 3 How. 556, 564; Wade v. Judge, 5 Ala. 130, 133; Nashville Railroad Co. v. Comans, 45 Ala. 443. Taken in this sense, the law of the State upon the subject of peddling has no reference to the character of the articles sold, but only to the mode of transportation. The language of the act is this: "For peddlers in a wagon, forty dollars; for peddlers on a horse, twenty dollars; for peddlers on foot, ten dollars. A peddler's license shall entitle him to peddle only in the county where it is taken out." Acts 1868, supra, p. 333, cl. 22. Here, there is no discrimination. Every peddler in the mode mentioned pays the same license, who pays any license at all. The "privileges and immunities" of all are the same. Const. U. States, Art. IV. § 2. But there is one class of goods that the State does not choose to tax in this way; that is, goods manufactured in the State by the makers thereof. Has the State no power to do this? May not the State encourage manufacturers in its own borders, by exempting the articles so manufactured from taxation for a time, or altogether? This is not forbidden by any clause of the constitution of the United States, or of the State, nor relinquished to the federal government. Then it is retained by the State. Const. U. States, Art. IX. If the right exists at all, it is sovereign and untrammelled, and the State may exercise it in any manner that may accomplish the end proposed. In the case at bar, the agreed statement of facts shows that the appellant peddled sewing-machines, made in the city of St. Louis, in the State of Missouri, in a wagon, in the county of Calhoun in this State, within the time laid in the indictment, without having paid for and taken out a license, under the revenue law above cited. For this he was indicted, tried, and found guilty by the verdict of a jury, and fined as required by that law. The prosecution shows no irregularities which would justify a reversal. The law under which the proceedings were conducted is valid and binding, and was not affected by the act of March 2, 1871, above quoted. The judgment of the court below is, therefore, affirmed. [Malone v. State.] Ex parte Reeves. Petition for Mandamus, to Circuit Judge, in Matter of Application for Change of Venue. Change of venue in criminal case; to what county. Under the statute which gives the defendant in a criminal case the right to a change of venue (Rev. Code, $$ 4206-7), the venue must be changed, on his proper application, to the "nearest county free from objection;" and neither the time when the next term of the court will be held in that county, nor the convenience of the witnesses, is sufficient to authorize the removal to any other county. PETITION by John Reeves, for a writ of mandamus to the Hon. J. MCCALEB WILEY, presiding in the circuit court of Coffee county, on the facts stated in the opinion. J. D. ROBERTS, for the petitioner. B. F. SAFFOLD, J.-The petitioner, under indictment for grand larceny, was granted a change of venue from Coffee to Pike county. He desired the cause to be transferred to Covington county, because, no objection being made to that county by the State, it was shown to be the nearest. The court ordered it to Pike, because the witness lived somewhat nearer to that county, and the spring term of the court there had not passed, whereas it had passed in Covington. The statute expressly directs, that "the trial must be removed to the nearest county free from exception, and can be removed but once." R. C. § 4207. The exception referred to means some obstacle to a fair and impartial trial. R. C. § 4206. The remedy before trial is mandamus. Birdsong v. State, 47 Ala. 68. A rule nisi will issue. Malone v. The State. Indictment for Obstructing Public Road. 1. Obstructing public road; failure to repair public bridge; sufficiency of indictment. Although a public bridge, across a public road, is a part of the highway, and it is made by statute a misdemeanor to obstruct a public road (Rev. Code, § 1361); yet a failure to keep the bridge in repair, on the part of one whose duty it is to repair it, is not an obstruction of the public road; and if an indictment for obstructing the road shows, on its face, that the alleged obstruction consisted only in the failure to repair the bridge, it is fatally defective. 2. Conditional order granting right to erect mill-dam. - An order of the commissioners' court, granting a person permission to erect a mill-dam across a stream, "provided he builds and keeps up a good, substantial bridge across the creek, or makes as good a way to cross said creek at the present ford," if the condition be not a nullity, certainly does not subject a subsequent owner of the land to an indictment for failing to keep the bridge in proper repair. Malone v. State.] FROM the Circuit Court of De Kalb. FOSTER & FORNEY, for the defendant. BEN. GARDNER, Attorney General, for the State. PETERS, C. J.- The frame of the indictment in this prosecution is somewhat peculiar. I set out the count in full. It is in these words: "The grand jury of said county charge that, before the finding of this indictment, G. W. Malone wilfully obstructed a public road in said county leading from Lebanon to Van Buren, by failing to keep the bridge on said road across Willes Creek in a safe condition for the public travel, as he was in duty bound by law to do; contrary to law, and against the peace and dignity of the State of Alabama." The accused demurred to this indictment, and the demurrer was overruled. He then pleaded not guilty, and a trial was had on this plea; and the defendant was found guilty by the jury, and fined fifty dollars; for which sum judgment was regularly rendered, and for costs. From this judgment the defendant appeals to this court. The record shows, also, that there was a bill of exceptions taken on the trial, which purports substantially to set out all the evidence. But in this there is no testimony which tends to show that the accused was bound by any law of the State to keep the bridge, mentioned in the indictment, in good repair for travel. Then, his failure to do this could not be an offence. The prosecution charges, that the defendant "obstructed the public road," but it also shows how this was done to wit, by failing to keep the bridge on a public road, "across Willes Creek, in a safe condition for public travel." The specification does not support the charge in the indictment. The two are incompatible. The charge is a malfeasance, which is alleged to have been accomplished by a non-feasance. The same evidence will not support both allegations; yet both should be proved, else the offence as alleged is not established. Such a pleading is repugnant and vicious. The demurrer should have been sustained. 2. On the trial, the State offered evidence to show that one Ryan, in 1853, obtained an order from the proper court to erect a dam for a mill on Willes Creek, in the usual form. Rev. Code, §§ 2481 et seq. In this proceeding, the verdict of the jury was in these words: "We, the jury, after examining the lands of William Ryan, agree that the said Ryan may erect a dam four feet high, at the point designated in his petition, provided he builds and keeps up a good, substantial bridge across the [Ex parte Amos.] creek, or makes as good a way to cross said creek at the present ford." It was also shown that the defendant, Malone, was, at the time laid in the indictment, the owner of the lands on which said dam and bridge were built, and that the bridge was out of order for safe travel. The testimony above mentioned was objected to, as irrelevant. The court refused to exclude it, and charged the jury, if they believed it was true, that the defendant was guilty. In both these particulars the court erred. The evidence should have been excluded. It did not tend to show any guilt on the part of the defendant whatever. The condition in the order for the dam, requiring the building of the bridge, or the making of the way at the ford, only imposed a liability on Ryan, if it is not a nullity, and a failure to perform it is not the subject of indictment. To obstruct a public road is a misdemeanor. Rev. Code, § 1361. And a public bridge is a part of the public road. Sims v. Butler County, at January term, 1873. But the evidence in this case does not tend to establish such a charge. Upon the proof, the verdict ought to have been for the defendant. The judgment of the court below is reversed, and judgment will be rendered here, dismissing the prosecution. Ex parte Amos. Petition for Mandamus to Circuit Judge, in Matter of Appointment of 1. Revised Code; how far of force. The Revised Code, as a whole, has never been adopted by the present government of the State; only such laws and parts of laws therein contained as are not in conflict with the constitution and laws of the United States, or with the constitution of this State, have been " continued in force." 2. Constitutional provisions as to election of judges. Since the constitution provides that all judicial officers shall be elected by the people (Art. VI. § 11), the legislature cannot, by statute, prescribe any other mode, which shall be compulsory on the parties, for the selection or appointment of a special judge, on account of the incompetency of the presiding judge from interest or relationship. 3. Incompetency of presiding judge; nomination of attorney as special judge. — The statute which provides that, when the presiding judge of the circuit court is incompetent, from any cause, to sit on the trial of any case, the parties to the suit must, when the same is reached for trial, nominate some attorney present in court, who must preside as judge for the trial of such cause during that term; and if the parties fail promptly to make such selection, the clerk of the court must nominate the attorney," &c. (Rev. Code, § 758), is not obligatory upon the parties, the clerk, or the judge, if one of the parties objects; but, if both parties consent to the appointment of an attorney in such case, he may act as a quasi court of arbitration, and an appeal will lie from his award or judgment. APPLICATION by petition, by James M. Amos, for a writ of mandamus to the Hon. Wм. H. SMITH, the judge of the tenth |