[Ex parte Amos.]

judicial circuit, to compel the nomination of an attorney, as special judge, to preside on the trial of a certain cause pending in the circuit court of Randolph, in favor of the petitioner, and against one Jenkins Bennett, involving the right to the office of sheriff of said county. It appears from the bill of exceptions, which is made an exhibit to the petition, that when said cause was reached on the trial docket, the presiding judge stated that he was incompetent to sit in the case, having been of counsel for the defendant before he was appointed the judge of the court. Thereupon, the plaintiff proposed that the parties should select an attorney present in court, to preside as special judge; but the defendant would not consent to this. "The plaintiff, by his counsel, then proposed that the clerk of the court nominate an attorney to preside over and try said cause at the present term; to which the defendant objected, and the objection was sustained by the presiding judge, who refused to permit the clerk to nominate an attorney to try said cause, and refused to retire from the bench, or to permit an attorney, nominated by the clerk, to preside as judge, and try said cause," &c., to which the plaintiff excepted.

JNO. T. HEFLIN, for the petitioner. There is no constitutional inhibition on the power of the legislature to provide for the trial of causes in which the presiding judge is incompetent to sit; and public necessity demands that this power should be exercised by the legislature, to prevent a failure of justice. The validity of the statute has been approved by the practice of the lower courts, and has never been questioned by this court. Ala. & Fla. Railroad Co. v. Burkett, 42 Ala. 83. The constitutionality of similar statutes has been frequently sustained. Henderson v. Pope, 39 Geo. 361; Brown v. Buzan, 24 Indiana, 194; Grinstead v. Buckley, 22 Miss. 148.

WM. H. SMITH, pro se, submitted a written argument, as a part of his answer to the rule nisi which had been served upon him, contending-1st, that the statute providing for the appointment of an attorney as special judge, if it could be regarded as compulsory, was unconstitutional, because the attorney was not elected by the people, and was not under the sanction of an official oath; 2d, that, if the law was valid, the record showed a failure of duty on the part of the clerk only, and not on the part of the presiding judge, who was not competent to take any official action in the cause; and 3d, that a mandamus was not the proper remedy, since the term of the circuit court had passed, and this court could not know, or presume, that the same judge would preside at the next term.

[Ex parte Amos.]

PETERS, C. J.-This application involves the construction of section 758 of the Revised Code, and a consideration of its validity under the present constitution of the State. The state constitution creates the state government, and it is wholly an instrument of limitations. The officers of the government thus instituted are the agents of the people, to execute its powers, and the constitution is the warrant and the limit of their authority. Smith's Comm. on Stat. & Const. Constructions, p. 443 §§ 294 et seq. The Revised Code has never been adopted by the present government of the State, under the present constitution, as a whole; only such laws and parts of laws, as do not conflict with the constitution and laws of the United States, or with the constitution of this State, have been continued in force. See Acts 1868, p. 7.

The section of the Code referred to is in these words: "758. When any judge of the circuit court is incompetent to try any case standing for trial, by reason of relationship to parties, or of having been engaged as counsel in the cause, or for any other reason, 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, who shall preside over and try the cause at that term." This law clearly makes the attorney, who presides at the trial thus appointed to be had, a "judge for the trial of such cause during that term." Then, he would have all the authority to manage and conduct the trial, according to the practice of the court, and enter on the minutes of the court such judgment as he may determine upon and consider, as a judge of the circuit court would be bound to do. It seems to me that no other logical inference can be drawn from the purpose and language of the law. Then, the question arises, can such a judge, under the present constitution, be created by the act of one of the parties to the suit, in opposition to the will of the other party, or by act of the general assembly of the State? This inquiry must be answered from the constitution itself. This instrument declares, that the judicial power of the State shall be vested in certain named officers, who are specially designated, and in " such persons as may be by law invested with powers of a judicial nature." Const. Ala. Art. VI. § 1. After creating the courts of the state government, the constitution directs, that the judge of these courts, except "notaries public," shall be elected by the people; and it also prescribes by whom vacancies shall be filled in the offices thus established. Const. Art. VI. §§ 11, 13. It is nowhere permitted to the legislature to elect or appoint any judicial officer or officers of the State, or to fill any vacancy in

[Ex parte State.]

any judicial office. Nor is the legislative body empowered to authorize any person to discharge any of the duties of a judge of the circuit court. Such officer can only be elected by the people, or appointed to fill a vacancy by the governor, as directed in the constitution as above cited. State, ex rel. Bull, v. Snodgrass, 4 Nev. 524. A judge of the circuit court, with compulsory powers to hear and determine causes pending in a circuit court of this State, can only be created by election or appointment in the manner prescribed by the constitution of the State. Const. Ala. 1867, Art. VI. § 11.; Acts Ala. 1870 -1871, p. 17. It follows from this, that section 758 of the Revised Code is unconstitutional, and void as an authority to compel the trial of a cause pending in a circuit court in the manner prescribed by said section, if either party to such a suit objects to such a trial. Ex parte Roundtree, at the present

term.

But this section of the Code authorizes the parties to the suit, when there is no objection, and the parties consent to it, to adjudicate the suit under the provision of said section as in a court of quasi arbitration; and from the award or judgment of such tribunal an appeal may be taken to the supreme court. Alabama & Florida R. R. Co. v. Burkett, 42 Ala. 83.

For the reasons above stated, a circuit judge, who refuses to enforce the remedy under said section 758 of the Revised Code, will not be forced to do so by a mandamus.

The application is denied, with costs.

Ex parte The State, ex rel. Brooks.

Petition for Prohibition to Circuit Judge, in Matter of Habeas Corpus.

Jurisdiction of circuit judge, in matter of habeas corpus. A circuit judge has jurisdiction to grant a habeas corpus, on behalf of a person restrained of his liberty; and although he would have no power to discharge the prisoner, if it appeared on the hearing that he was confined under the judgment or sentence of a court of competent jurisdiction, and an order of discharge by him would be void, yet this court will not presume, in advance of the hearing, that he will render an improper decision, nor restrain his action by prohibition.

APPLICATION by petition, in the name of the State of Alabama, on the relation of A. L. Brooks, the solicitor of Macon county, for a writ of prohibition, or other proper writ or process, to restrain the Hon. L. B. STRANGE, the judge of the ninth judicial circuit, from proceeding in the hearing and determination of a writ of habeas corpus, sued out before him by one Jim Lowe on behalf of Edward Brown. The motion is not entered on the docket, and none of the papers submitted have come to the reporter's hands.

[Ex parte State.]

66

PETERS, C. J. — The application for the writ of prohibition must be denied. The petition for the writ of habeas corpus seems to be regular. It shows that Brown was restrained of his liberty in this State;" and the name of the person restraining him, the place where he is restrained, and all the other necessary facts are stated. Rev. Code, §§ 4260, 4262. Upon this application, it was the duty of the circuit judge to issue a writ of habeas corpus, as he did, commanding the person restrained to be brought before him, at a proper time and place, "to do and receive what shall then and there be considered concerning him." Rev. Code, § 4267. This has all been properly done, and the learned judge by whom the writ was granted is proceeding to hear the application on the return of the writ. On the facts stated in the petition for the writ, the judge of the ninth judicial circuit is most clearly clothed with the amplest authority to issue the writ for the discharge of Brown, if the facts, on the return and hearing, should justify his discharge; and if not, then to remand him to the confinement or restraint of which he complains. Rev. Code, tit. Habeas Corpus, pp. 785-90. Prohibition is only granted where an officer usurps jurisdiction not authorized by law. Here, the jurisdiction of the circuit judge is undoubted; and this court cannot anticipate that he will make a wrong inquiry, or render an improper or illegal order of discharge.

It may be proper to add, that Brown should not be discharged, unless his confinement is wholly without authority of law. If his confinement is merely erroneous, his remedy is by appeal, or certiorari. The application is refused.

BRICKELL, J.-Judge SAFFOLD and myself concur in the refusal of the prohibition; but we think the case requires us to say, that if it should appear, on the hearing of the habeas corpus, that the prisoner is restrained under the judgment of a court of competent jurisdiction, he should not be discharged; and if discharged, the order discharging him would be void, and would offer no obstacle to his rearrest and confinement.

[Ex parte Hamilton.]

Ex parte Hamilton.

Petition for Prohibition to Chancellor, to restrain Proceedings under Injunction in Matter of Contested Election, and under Attachment for Contempt.

When prohibition lies not to chancellor. — This court will not award a writ of prohibition to the chancellor, at the instance of a defendant in a pending suit, to restrain action under a bill for injunction in the matter of a contested election, and under an attachment for contempt in violating the injunction, on the ground that the chancery court has no jurisdiction of the subject-matter of the bill, when it does not appear that the petitioner has ever answered the bill, or moved to dismiss it for want of equity, or sought relief in any other mode in the chancery

court.

The

THE petitioner in this case, Thomas A. Hamilton, claiming that he was elected an alderman for the sixth ward in the city of Mobile, at the election for municipal officers held on the second Monday in December, 1873, and had received the proper certificate of election from the sheriff as returning officer, applied to this court for a writ of prohibition, or other appropriate writ or process, directed to the Hon. ADAM C. FELDER, chancellor of the southern chancery division, presiding at Mobile, to restrain further proceedings in a cause pending in the chancery court at Mobile, wherein one James Gillette was plaintiff, and said Thomas A. Hamilton and Rufus Dane, the sheriff of Mobile county, were defendants. bill in that case was filed on the 19th day of December, 1873, and prayed an injunction against said Hamilton, to restrain him from entering on the office of alderman of said ward by virtue of his certificate of election, or attempting in any manner to exercise the duties of said office; and also against said Dane, as sheriff, to restrain him from delivering to the city clerk, or to any other person, the ballot-boxes containing the poll-lists and other evidences of the election, and require him to preserve them in his possession until the further order of the court. The bill alleged, that said James Gillette in fact received a plurality of the votes cast for alderman of said sixth ward at said election, and that the certificate of election in favor of Hamilton was founded on false and fraudulent returns, corruptly made by the inspectors of one of the city wards, conspiring with other persons who acted in the interest of Hamilton. The bill also alleged, as a ground for equitable relief, in addition to the charges of fraud, that there was no adequate legal remedy for contesting said election; that the general law was inapplicable, and the provisions of the city charter on that subject were unconstitutional and void, as well as substantially defective. The prayer of the bill was, that the chancery court would "take jurisdiction of the whole matter,"