¶1Appellant,, as. relator, filed a statutory complaint or information in the nature of quo warranto against appellees, as authorized by chapter 128, §§ 5450-5472, of the Code, alleging that appellees were usurpers of the offices of members of the court of county' commissioners of Covington county, and that the relator, a member of the board of revenue of Covington county, was entitled to discharge the duties of the office alleged to be usurped by one or the other of the appellees. The trial court sustained a demurrer to appellant’s amended complaint or information, and the appellant declined to plead further, Rnd suffered judgment of dismissal, and from that judgment prosecutes this appeal.
¶2•It is conceded that the correctness or incorrectness of the rulings complained of depends upon • the proper construction and the validity or invalidity of certain provisions or sections of a local statute passed by the Legislature of Alabama at the late (1915) session (Local Acts, 1915, pp. 98, 103). This act and the notice of its proposed passage as provided for by section 106 of the Constitution are set out in extenso as exhibits to the complaint or information. The act, as its title indicates, undertook to create a court of county commissioners for Covington county in lieu of a board of revenue for the same county, and to provide for officers to discharge the duties of the court so created, and for the qualifications of such officers, and for their election or selection. As the court created was in lieu of the board of revenue, which was abolished, and as the terms of the members of the board abolished had not expired, the act undertook to provide that the members of the board who should comply with certain provisions of the act should hold office as members of the court created until their successors were elected and qualified under the provisions of the act creating the court. Appellant was a member of the board of revenue, and qualified and held the office under the statute in question until appellees were elected and qualified as provided in the statute, when the latter assumed the duties of the office,-and thereafter discharged the duties previously discharged by appellant.
¶3It should be-observed that--neither appellant nor either of appellees professes to be‘entitled to hold, office for the full term *541fixed by the statute, but that each professes and claims to be entitled to hold office until the-beginning of the first full term fixed in the statute, which is until their successors are elected and qualified at the general election to be held' in 1916. In fact, the term to which the claim of office is made is the interim from a -special election held 60 days after the passage of the act, to-wit, October 9, 1915, to the general election to be held in 1916, and until their successors are .qualified. It is contended by the appellant that the act in question or part thereof is void, which provides that at the general election to be held in 1916 the members of the court or some of them shall be elected, not by the votes of the entire' county, but by the votes of the respective districts into which the act in question divides the county. It is therefore apparent that a sufficient answer to this contention is that none of the parties claim any rights under this provision of the act, and that none can claim any such right until an election is held under this provision. If we were to decide this question, the case to this extent would be moot.
¶4It is next insisted that the provision of the act which authorized a special election for the selection of the persons to fill out the unexpired terms until the general election in 1916, at which election the officers should be elected for full terms, was void, because such provision was not authorized by the notice of the intention to pass the bill, as is provided • in ■ section 106 of the Constitution. The provisions of the act which relate to the filling of the offices during the interim from the passage of the. act until the general election in 1916 are as follows: “Sec. 17. The officers of the board of revenue for said county, who may be in office at the time this act "goes into effect shall constitute such respective officers of this said court, if qualified under this act upon filing oath and bond as provided herein within ten days from the approval of this act as a condition precedent, and shall hold office, in such event, until their successors are elected and qualified as provided for in this act.
¶5“Sec. 18. That on the first Saturday after the expiration of sixty days from the approval of this act, an election shall be held in Covington county, to be held and provided for in all respects and carried out as general elections, for the purpose of electing officers for said court, whose terms of office shall begin on the election and qualification under this act, and until their successors are elected and qualified at the general election‘in 1916; and *542county officers for said county, shall perform the same duties, and in conformity to the law, as to such special election, its details and the results thereof, as is required under the general laws of this state as to elections.”'
¶6The record shows that relator was one of the members of the board of revenue, and that he held office under section 17 of the act, from the passage of the act in question until the special election provided for under section 18 of the act, at which time the appellees were elected to fill out the remainder of the interim. Why two modes should thus be provided for selecting the persons to fill out the short interim of a little more than a year is a question of propriety addressed to the Legislature, and not to the court. It is a question of policy, and not of power or right. We are unable to see why such a provision was not authorized to be placed in the bill proposed to be passed, by the notice of intention, published as required by section 106 of' the Constitution. The provisions are certainly germane and cognate to the main purpose of the proposed bill; and some such provision or provisions were necessary after the board of revenue was abolished, of course, because the act terminated the right of the incumbents, as members or officers of the abolished board, to hold the offices in question. The court of commissioners created by the act was in lieu of the board of revenue abolished, and all the powers and duties of the- board' were conferred on the court. The first regular term of office of the members and officers of the court created was not to begin until after the election to be held in the future — more than a year after the board was abolished — and it was not only proper, but necessary, for the Legislature to provide some mode for selecting the persons to fill’the offices during the interim; and this they did by sections 17 and 18 of the act, above set out. The mode and manner of selecting these persons was peculiarly within the power and discretion of the Legislature. There is no constitutional prohibition or inhibition as to any particular mode. It could be done equally as well by the act naming certain persons to fill the offices ad interim, or authorizing the Governor or some other authority to appoint such, or providing for an election to select such persons. The Legislature in this case saw fit to adopt two of'these methods, instead of one, for selecting the persons to fill out the terms of office during this interim, thus attempting the constitutional method prescribed for filling vacancies in certain judicial offices. Whether the *543Legislature deemed the two modes necessary, to comply with these constitutional provisions, or whether some other reasons dictated the provisions, it is unnecessary for us to inquire, for the reason that the Legislature was well within the scope of its power in so framing the act.
¶7If the statute were a general one. we apprehend no question would be raised as to the validity of such provisions: for like provisions are well within the powers of the Legislature in creating inferior and statutory courts, in abolishing the same, in filling the offices provided for such courts, in nroviding for the filling of vacancies to occur, or in providing that other officers shall be ex officio the officers of the courts so created. The authorities to this effect are too numerous to require citation. In fact, the Constitution contains provisions expressly authorizing the exercise of some of these powers, and the others are held not to be prohibited.
¶8It is contended in this case, however, that the statute in question is a local one, and as such is prohibited, except after notice and publication thereof as required by section 106 of the Constitution. This section provides as follows: “No special, private, or local law shall be passed on any subject not enumerated in section 104 of this Constitution, except in reference to fixing the time of holding courts, unless notice of the intention to apply therefor shall have been published, without cost to the state, in the county or counties where the matter or thing to bé affected may be situated, which notice shall state the substance of the proposed law and be published at least once a week for four consecutive weeks in some newspaper .published in such county or counties, or if there is no newspaper published therein, then by posting the said notice for four consecutive weeks at five different places in the county or counties prior to the introduction of the bill; and proof by affidavit that said notice has been given shall be exhibited to each house of the Legislature, and said proof spread upon the journal. The courts shall pronounce void every special, private, or local law which the journals do not affirmatively show was passed in accordance with the provisions of this section.”
¶9The notice in this case was as follows: “A bill will be introduced in the Legislature of Alabama at its next regular session convening in January, 1915, and enacted into a law for Covington county, Ala., creating and establishing a court of record *544for said county, styled the court of county commissioners, to be composed of one president, four associate members, and one clerk, to be elected by the qualified voters of said county at the general elections for 1916, and every four years thereafter, and whose terms of office shall be for the time and period as provided by' section 1464 of the Code of Alabama, vesting said court, and the officers thereof respectively, with all the powers, duties, jurisdiction, practice, and procedure as is now or may hereafter be conferred upon courts of county commissioners and boards of revenue of this state, and also that of the board of revenue of Covington county, and transferring all the matters, causes, records, and papers of said board of revenue of Covington county into said court of county commissioners, and abolishing said board of revenue for said county, requiring bond of the officers of said court, and prescribing their qualifications and compensations, and to further extend and otherwise enlarge, define, and prescribe the powers, jurisdiction, and duties of said court and the officers thereof, and to constitute the members of the present board of revenue of said county the. officers of said court until their successors are elected and qualified as provided for in said bill”
¶10This notice we deem to be ample to authorize any provision in the act in question which is here complained of, and which' can here be decided. It is probably the fullest and most specific of its kind which we have examined, and contains provisions possibly not necessary to support the act now under consideration. The provisions of the act are not different from or in conflict with any of the recitals contained in the'notice. While the notice did recite that the members of the board of revenue, one of whom was appellant, should hold office with certain qualifications, it did not recite any specific term or time for which they should hold. It recited that they should hold only until their successors were elected and qualified, as provided for in the act' proposed to be passed. The act did so provide, as well as how and when their successors should be elected; and they were' so elected, and appellant served his full time as so provided, while appellees are now serving the remainder of the interim as is authorized by the act. It therefore appears that appellees are not usurpers, but are by law now authorized and designated as the persons to discharge the duties and exercise the franchises of the office in question, until after the general election to'be held in November *545of the ■ current year, and úntil their successors are elected and' qualified.
¶11Counsel for appellant cite many cases and decisions of this court construing section 106 of the Constitution, and there are many more. All of these we- have examined, but none of these cases hold that the provisions of the statute under consideration would be void on account of section 106, or of any other provision of the Constitution; and there has been placed by the court no construction on the Constitution which would have the effect of rendering these provisions of the statute void. It is useless- to cite or review all the cases, because each decision is, of course, referable to the particular facts of the particular case; and in all the cases in which the act was declared void the provisions of the statute or the recitals of the notice or the publication thereof was entirely different from the case made on this appeal. What was said in the case of Christian v. State, 171 Ala. 52, 54, 54 South. 1001, as to the validity of another local act passed for the same county (Covington), as to the petition of another court of such county, and as to filling vacancies in the offices of- such court, is both apt and conclusive in this case. It is there said: “The Constitution does not proceed upon the theory that all the details of every proposed law should be worked out in advance and without the aid of legislative wisdom. It requires only that the local public shall be advised of the substance of the proposed law, of its characteristic and essential provisions, and of its most important features. And this court has so held in a number of cases. Its language has been that the Constitution is complied with if the notice contain a fair compendium or abstract of the act in all its essential features. It has been said that the Constitution does not interfere with the right of the Legislature to shape up and work out the details of local legislation.—State v. Williams, 143 Ala. 501, 39 South. 276; Hanna v. Tunstall, 145 Ala. 477, 40 South. 135.”
¶12In the case of State, ex rel. Hanna v. Tunstall, 145 Ala. 477, 40 South. 135, presenting a similar question of conflict between the provisions of a statute and the terms of the notice anticipating it, as to the mode of selecting the officers and filling the places during the interim, it is said: “Under the law as it stood, there was a solicitor of the city court of Anniston, elected by the Legislature, whose term would not expire until February 25, 1905. Notice was given that application would be made to the *546Legislature to amend that law in the following particulars: (1) So as to provide that this solicitor, at the expiration of the term, should'be ‘appointed by the governor or elected by the people.’ This was a notice to the people that the Legislature was to be asked to decide as to these two methods. No one could be deceived .by it, and, if any one had any preference as to whether either one or the other of these methods should be adopted, they should have made known their wishes 'to their representatives or to the Legislature. The Legislature adopted the elective plan, but, as the time for the regular election had passed, provided for an appointment to fill the office until the next general election of solicitors, which is in exact accordance with the general law.”
¶13It follows that appellees are not usurpers of any offices or franchises, but that they have been selected as officers ad interim, as provided by law; and the judgment of the lower court will be affirmed.
¶14Affirmed.
¶15ON REHEARING.
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¶19In State, ex rel. Sigsbee v. City of Birmingham, 160 Ala. 196, at page 202, 48 South. 843, at page 845, it was said: . “As the only constitutional question presented by the demurrer is whether the act of August 8, 1907, is violative of section 104, par. 29, of the Constitution, and that was the only question considered by the court below and in the argument of the case here, we cannot consider other constitutional questions suggested to us.”
¶20
¶21*549Where the determination by this court of questions involving matters of public concern cannot be had without the consideration and decision of the constitutional validity of enactments, this court must, in the discharge of its grave duty in that regard, take account of such questions, whether raised or argued in the lower courts or not, and decide them, provided the complaining party manifests his good faith and diligence by affording the essential data to advise the court in the premises and to relieve it of the burden of itself making a search of the journals to ascertain the true status of the subject of his complaint. The quotation before made from the Sigsbee Case is not in accord with these conclusions; and so to that extent that opinion must be, and it is, qualified.
¶22The petition under consideration brought into question the constitutional validity of the act of 1915, but the reasons therein assigned for the assertion of its invalidity were not good. A general objection by demurrer that an act is unconstitutional has been accepted here as at least raising the issue of constitutional validity vel non.—Beauvoir Club v. State, 148 Ala. 643, 650, 42 South. 1040, 121 Am. St. Rep. 82; Montgomery v. Birdsong, 126 Ala. 632, 648, 28 South. 522; Bay Shell-Road Co. v. O’Donnell, 87 Ala. 376, 6 South. 119. Since the petition would have been and was sufficient under the rule of pleading stated ante as from Jackson v. State, supra, and since the general allegation of the unconstitutionality of the act was efficient to invoke and to have justified a ruling, if made, of the court below that the act was invalid, not for a reason alleged, but on a ground or for a reason not particularly specified in the petition, the judgment now rendered cannot be affirmed here when, even for the first time on application for rehearing, the complaining party has fully met the burden of advising the court of the particular well-founded reason or ground for declaring the act invalid. If any other view should be accepted, this court would be placed in the wholly .indefensible attitude of affirming a judgment that this court now is brought to know cannot be sustained because the essential basis thereof is an enactment that never became a law. If the trial court had overruled the- demurrer, this court could not have pronounced prejudicial error of it.—Bay Shell-Road Co. v. O’Donnell, supra.
¶23■The act. under or in consequence of which appellees can alone assert a right to their offices being void, and the fact of invalidity *550being shown, though much belated, to this court, it follows that the application for rehearing must be granted, and that the judgment be reversed. The cause is remanded that appropriate effect may be given these conclusions by the court below.
¶24(dissenting). — I cannot concur. I have examined the subject ás thoroughly as I am capable of doing, and the following are my views on the subject. I concede that the majority are much more apt to be correct, but I am nevertheless convinced beyond a reasonable doubt that they are in error, for the following reasons:
¶25The majority have misconstrued the nature and purpose of the proceeding in question. The proceeding in the lower court, and in this court on the original hearing, was not to test the constitutionality of the statute declared void on this application for rehearing, but, on the contrary, was to determine which of two or more persons were entitled to hold office under this very statute until the general election of 1916, at which time the successors were to be elected. It is true that constitutional objections were raised as to certain sections of the act, but not as to the whole act; in fact, the trial court and this court hold one of the sections in question valid, and hold that, if the others were 'pronounced void, it would not affect the whole statute nor the result of this suit.
¶26It was specifically alleged that the act in question became a law, save as to the sections complained of, and the demurrers of course confessed this allegation: Then how or why should the trial court rule against what was alleged by one party and confessed by the other, and award relief not only not asked but inconsistent with that asked? In order that there may be no dispute as to this, I here set out the allegations to this end. After alleging.that plaintiff held another office, that of a member of the board of revenue, until that office was abolished, the information or complaint proceeds to recite that: The plaintiff exercised the powers, discharged the duties, and received the emoluments of said office from the 2d day of January, 1915, continuously “until the enactment into law of an act of the Legislature of Alabama entitled ‘An act to establish the court of county commissioners for Covington county, Alabama,’ which last-named act, *551among other things,- abolished the said board of revenue and provided that the officers of said board of revenue who may be in office at the time this act goes into effect shall constitute such respective officers of this said court, *' … and therefrom continuously performed and exercised the duties, rights, and powers and received the emoluments of the office of associate county commissioners of the court of county commissioners of Covington county, Alabama, up to and including the 8th day of November, 1915, and-was and is entitled, under the Constitution and laws of the state of Alabama, including said last-named act of the Legislature, to hold and possess said office of associate county commissioner of the court of county commissioners of said Covington county, and to perform and exercise the duties, rights, and powers and receive the emoluments of the same, until his successor shall be elected at the general election of 1916, and is qualified, as provided for in said last-named act.”
¶27On appeal to this court no question can be raised, even on the original hearing here, which was not raised in the trial court. The trial in this court is not de novo. This court has no jurisdiction or right to decide questions on appeal which were not raised in the court below. This is not a rule of propriety or of practice; it is one of jurisdiction and power. On appeal we can only review the questions raised and decided in the court below. I do not understand that the majority deny this last proposition, nor that they now intend to decide to the contrary; but; in my judgment, they do inadvertently decide to the contrary. If I correctly understand the position of the majority, it is that the question now decided was raised in the court below, and therefore necessarily there decided. In my judgment, the error of this position is affirmatively shown by an inspection of the record.
¶28This is not a common-law quo warranto proceeding; it is a statutory civil action. This distinction has been repeatedly pointed out by this court. In quo warranto proper it is sufficient to allege that the respondent is usurping the office of franchise, whereupon the burden or duty rests on him to show his right to hold, or to exercise; but in this statutory civil suit between two parties all the rules of civil pleading and practice prevail.
¶29In the case of Ham v. Buck, 156 Ala. 645, 47 South. 126, this distinction is clearly pointed out by Justice Denson, and the authorities there collected verify the correctness of the holding. It is there said: “Section 3 of the information or complaint alleges *552that the respondent usurps, unlawfully holds, and exercises the office of .mayor of the town of Elba, which is a public and civil office within the state. In the cases of usurpation and ouster it has been expressly decided that these averments are-sufficient against demurrer.—Jackson v. State, etc., 143 Ala. 145, 42 South. 61; Frost v. State, etc., 153 Ala. 654, 45 South. 203. But, when there is sought by this proceeding, ‘not only the exclusion of the defendant from the office in controversy, but the installation of the relator, the proceeding is essentially and practically a civil suit, wherein the complaint should set out the facts upon which the relator relies to sustain his title to the office, and so far as practicable, specify the objections intended to be made to the title of the respondent.’— State v. Price, 50 Ala. 568; State, ex rel. Goodgame v. Matthews, 153 Ala. 646, 45 South. 307. And the statute (Civ. Code, 1896, § 3428) requires that ‘the complaint in such action must concisely and clearly set forth the act or omission complained of.’—State, ex rel. Johnson v. Sou. B. & L. Ass’n, 132 Ala. 50, 31 South. 375; L. & N. R. R. Co. v. State, ex rel. Gray, 154 Ala. 156, 45 South. 296.”
¶30Each of the authorities cited supports the holding.
¶31The rule was first announced in the case of State v. Price, 50 Ala. 571, where it is said: “The proceeding under our statute commonly called quo warranto, when it seeks, not only the exclusion of the defendant from the office in controversy, but the installation of the plaintiff, is essentially and practically a civil suit, wherein the complaint should set-out the facts upon which the plaintiff relies to sustain his title to the office, and, as far as practicable, specify the objections intended to be made to the title of the defendant. The observance of this rule would save defendants much vexation and expense by apprising them at once of what they had to defend.”
¶32These statutes have been frequently readopted with this construction placed upon them, and, in my judgment, we ought not now to depart from them.
¶33Under these rules and this interpretation it seems to me that there can be no doubt that the trial court ruled correctly on the demurrer, and that, as the appellant declined to amend or to plead further, no’ other course was open to the trial than to dismiss the plaintiff’s suit.
¶34What the journals of the Legislature show .or do not show is a question of fact, and not of law. It is true that courts take *553judicial notice of what these journals show, but they are not required to examine them, nor to declare what they show, nor to ascertain or decide what they show, until called upon in the proper mode and on the proper occasion. It is very true that this is often spoken of as a question of law, but this is merely to distinguish it from questions which the jury pass upon. In this sense only' is- it a question of law. For example, whether or not a given bill was referred to a standing committee is of necessity a question of fact, and not of law. But for Constitutions, that question would have to be found by a jury, because a disputed question of fact. Our Constitution, however, requires the fact of reference to appear on the journals, and therefore limits the proof of the fact to this written document; and the construction of any written document is a question for the court, and not for the jury.
¶35Appellate courts, when exercising purely appellate jurisdiction, as in this cause, have no jurisdiction or power to consider evidence not before the trial court, or to decide questions of law not raised, and therefore not passed upon, in the court below, not even a constitutional question involving the validity of a statute. The following is what this court has heretofore said on this subject.
¶36In Sigsbee’s Case, 160 Ala. 196, 48 South. 843, this exact question was presented and considered and decided; and, in my judgment, the decision and opinion then rendered are correct. As the opinion in that case is short, but in point and conclusive, I here set it out: