EX PARTE STATE

SOMERVILLE, J.

The main question presented by this petition and the return made by the respondent to the alternative writ is whether or not, under sections 6331-6335 of the Code of 1907, a probate judge is authorized to hear applications for bail by a prisoner under indictment for a capital offense.

In the recent case of Ex parte State of Alabama ex rel. Attorney General, 85 So. 707 (which was the petition for prohibition referred to in the reporter's statement above), it was held that the procedure provided by sections 6331-6335 of the Code of 1907 —

"is not intended for cases in which the prisoner is indicted for a capital felony, but that the right to bail in such cases is to be determined on habeas corpus, on the hearing of which the state and the accused are entitled as of right to have the witnesses heard."

We have again considered the question in full bench, and a majority of the court, consisting of ANDERSON, C. J., and SAYRE, GARDNER, and BROWN, JJ., are of the opinion that the respondent, as probate judge of Morgan county, was without authority to act in this case, and they adhere to their previous conclusion as stated by SAYRE, J., in the case above referred to.

It appears from the respondent's answer that the circuit solicitor consented to the hearing in question. However, it is an elementary principle of law that jurisdiction of the subject-matter cannot be created by consent, and the solicitor's consent cannot be considered here. It results that the mandatory writ must issue to the respondent, commanding him to set aside and annul the order admitting the prisoner to bail.

The writer and THOMAS, J., are of the opinion that, while the first clause of section 6331 very obviously relates to fixing bail in cases only which are bailable as a matter of law, the latter clause, authorizing an application for bail to any judge or chancellor in vacation, is not limited to such cases, but relates to all cases, whether of indictment or otherwise, in which the prisoner is entitled to bail, either as a matter of law or of fact. They are impelled to this conclusion in view of the language of section 6335, which allows appeals from orders refusing application for bail, meaning, ex vi termini, refusals in refusable cases, viz. in capital cases where the right to bail vel non depends on the weight of the evidence.

They would conclude, therefore, that the respondent was authorized by law to hear the application of the prisoner Namie for bail, and to admit him to bail if the evidence justified such an order.

Writ granted.

ANDERSON, C. J., and SAYRE, GARDNER, and BROWN, JJ., concur.

SOMERVILLE and THOMAS, JJ., dissent.

McCLELLAN, J. (concurring specially).

This proceeding concerns action by a judge of probate upon a petition or application for bail as distinguished from an habeas corpus to admit to bail. In Callahan v. State, 60 Ala. 65 (particularly page 72), this court held, speaking through STONE, J., that these two systems were distinct, "independent"; and there has been no such subsequent change in the pertinent statutes as to avert the conclusion thus stated in Callahan v. State, supra. Indeed, their repeated re-enactment, in the light of the settled construction thus taken in the Callahan Case, effected, under familiar doctrine, to constitute that conclusion a part of the systems. While an appeal by the state is provided from an order admitting to bail in an habeas corpus proceeding, no right of appeal is or has been given the state from an order admitting to bail in response to an application for bail under that "independent" system, viz. Code, § 6331 et seq. Instead of a right of appeal being given, the state from the allowance of bail in response to an application for bail (under section 6331), Code, § 6335, only confers the right of appeal upon a refusal to admit to bail, thus restricting the right of review by appeal to him whose application for bail is denied.

I concur with Justices SOMERVILLE and THOMAS in their construction of the term "bailable felony," as employed in Code, § 6331, when considered in connection with the provisions of section 6335.

The power and authority of a judge of probate to entertain, hear, or determine an application for bail, is only conferred "in vacation," necessarily referring to the court to which the indictment is returned. Vacation was long since well defined in Ex parte Branch, 63 Ala. 383, 386. It is a period, or periods, intervening between terms of court. The act approved September 22, 1915 (General Acts, pp. 707, 708), provides that the circuit courts "shall be open" throughout the year except for very short periods in July and December of each year. The application for bail in this instance was made to Judge Troup in term time of the circuit court, and not in vacation; and hence the judge of probate was without power or authority, in any event, to entertain the application for bail under Code, § 6331 et seq.

These considerations lead me to concur in the conclusion to which the majority of the court gives its approval.