Ex parte Diggs , 50 Ala. 78 ( 1873 )

PETERS, C. J.

1. The judge of the criminal court of Dallas county has authority to appoint a competent attorney to act in that court, in the place of the solicitor, when this latter officer is absent, or disqualified under the Code, or when the office of solicitor is vacant, and the vacancy has not been filled by an appointment made by the judge of the circuit. Rev. Code, §§ 146, 200, 859; Const. Ala. 1867, Art. VI. § 17. Any appointment, so made by the judge of such criminal court, cannot extend beyond this. And as the order, suspending Mr. Diggs and appointing another person in his place, may be construed to have been made to effect the end above indicated, I feel at liberty so to construe it. So construed, it may be sustained ; but, beyond this, it is void.

2. But now, the judgment against the solicitor (Diggs) having been reversed, he is entitled to be restored to his office, and to all the rights and privileges appertaining to the same. Rev. Code, § 146. This is the express language of the Code, which is this : “ When any person, holding any office or place under the authority of this State, is sentenced by any court of the United States, of this State, or any other state, to imprisonment in the penitentiary, his office or place is vacated from the time of the sentence; and if the judgment is reversed, he must. he restored ; but if pardoned, he must not.” The restoration should be made immediately on the reversal. No doubt this will become quite apparent to the learned judge of the criminal court of Dallas county, when he shall seriously consider the extent of the jurisdiction which the Constitution and laws confer upon his office. It therefore seems very clear that Mr. Diggs is entitled to immediate restoration to his office as solicitor in Dallas county.

A rule for this purpose is accordingly granted, as asked in the petitioner’s application; and the question of costs is reserved, until said rule is executed and returned into this court.