Ex parte Washington

THOMAS, J.

(1) The appeal is from an order of the judge of the Tuscaloosa county court declining to discharge the petitioner, appellant, on habeas corpus. Her alleged right to a discharge was predicated in the petition upon the. ground that the judgment of conviction under which she was restrained of her liberty was null and void, in that P. B. Traweek, who rendered the judgment, while acting as recorder of the city of Tuscaloosa in a case wherein he was trying the petitioner for the violation of a municipal ordinance, “was,” in the language of the petition, “wholly without power or authority to act as recorder, * * * but was a usurper and intruder, whose act was not a judicial act authorizing the petitioner’s imprisonment.”

From the agreed statement of facts, upon which the habeas corpus petition was tried, it appears that said Traweek was exercising the duties of recorder under a temporary appointment from the president of the board of commissioners of the city of Tuscaloosa, who in making the appointment Avas acting under the power and authority of the- following ordinance: “Be it ordained by the board of commissioners of the city of Tuscaloosa, Alabama, as follows:

“'Section 1. That the position of recorder be and the same is hereby established for the city of Tuscaloosa and the police jurisdiction thereof.

“[Then follow section 2 and 3, which are immaterial here.]

“Sec. 4. That until a recorder is elected, or in the event of any vacancy in such position of recorder, or in the absence of a recorder, any commissioner of said city be and he is hereby authorized to appoint temporarily as recorder for said city any one that he deems fit and proper for the position of recorder, said appointment to be effective for no longer than one week; and such recorder so appointed shall have and exercise all the power and authority granted to recorders of municipalities.”

Such power and authority is fully set forth and defined in sections 1213, 1215, 1216, 1221, 1223, and 1224 of the Political Code of Alabama.

•The petitioner — though, if she had, that fact would not, as seen from the authorities hereinafter cited, have changed the result — raised no objection, as the agreed statement of facts recites, in the municipal court to the power and authority of said Traweek, who was so acting as recorder under such appointment, and holding court at the usual time and place for holding the recorder’s court in said city, to try her case; but from his judgment of. conviction therein she appealed to the circuit court, and later, before the trial of the appeal, she dismissed it upon the assumption that the judgment appealed from was void and would not support an appeal, and sued out the present writ of habeas corpus, setting up for the first time the lack of power and. authority iu said Traweek to exercise the jurisdiction of a recorder.

She now insists that his appointment as recorder was a nullity, because, as she asserts, the said ordinance of the city commissioners, investing one commissioner with the authority to appoint a temporary recorder, was void, in that it undertook to delegate to one commissioner the authority to exercise a power — the appointment of an officer — which,, it is urged, could not be delegated, and which, if it could be exercised at all, could be exercised only by the commissioners sitting as a board or body.

However this be, upon which we need express no opinion, it can avail the appellant nothing. Traweek was certainly not a usurper (23 Am. & Eng. Ency. Law [2d Ed.] 327, C), but was a de facto recorder, holding the court and exercising the duties, functions, and jurisdiction of such office under color of right, at a time and place when and where such court could be legally held, and his judgment of conviction rendered against appellant was therefore not void, although his appointment might have been.—Ex parte Lane, 12 Ala. App. 232, 67 South. 727; Ex parte State ex rel., etc., 142 Ala. 87, 38 South. 835, 110 Am. St. Rep. 20; Sellers v. Smith, 143 Ala. 566, 39 South. 356; Walker v. State, 142 Ala. 7, 39 South. 42; Roberts v. State, 126 Ala. 74, 28 South. 741, 30 South. 554; 8 Am. & Eng. Ency. Law (2d Ed.) 781 et seq.; Id. 715 et seq.; Davis v. State, 153 Ala. 73, 45 South. 154; Cofer v. State, 168 Ala. 172, 52 South. 931.

(2) The petitioner’s counsel also contend in brief that, even conceding that petitioner was not entitled to a discharge on the ground that we have discussed, yet that she was entitled to a discharge because of the invalidity of the ordinance, which declared and defined the offense of Avhich she Avas convicted, selling intoxicating liquors ; it being urged that said ordinance is void because it does not contain the enacting clause as prescribed by charter. — Political Code of Alabama, § 1252.

If the ordinance Avas void, there are authorities Avhich hold that petitioner could get the benefits of its invalidity, even on habeas corpus (15 Am. & Eng. Ency. Law [2d Ed.] 169—7; Ex parte Cowert, 92 Ala. 94, 9 South. 225; Ex parte Sikes, 102 Ala. 173, 15 South. 522, 24 L. R. A. 774), provided her petition was so framed as to raise that point, though we have held, following later rulings of our Supreme Court-, that its invalidity could not be raised by habeas corpus (Ex parte Lane, 12 Ala. App. 232, 67 South. 727). Whether it could, or Avhether it could not, the petition is not so framed as to present the point, as the allegations of the petition are such that petitioner is by them confined on this appeal to the one ground, Avhich Ave have first considered, since that ground, and none other, is specified in the petition as the reason for alleging that the judgment under which petitioner was held was void. We are not at liberty to consider a question that Avas not raised below.

Besides, Avhat we have said in the cases of Lane v. City of Tuscaloosa, 12 Ala. App. 599, 67 South. 778, and Lane v. City of Tuscaloosa, 12 Ala. App. 604, 67 South. 779, indicates that we are of opinion that the ordinjance is not void on the ground urged. It follows that the order and judgment of the lower court, refusing to discharge petitioner, must be and is affirmed.

Affirmed.