The Birmingham age-herald., 1908-12-21
Author of Greater Birmingham Bill Says Suburbs
 Can't Escape
SERIOUS, QUESTION IN
 ACTION OF ALDERMEN
Writer Says causeY Mcdonald and Others Are Not De Facto Alder men-one Chance for Seals.
 History of the Bill.

To the Editor of The ge-Herald:
 Some of our East Birmingham friends are laboring under the delusion that hay ing had the supreme court declare the Eleventh ward illegally annexed and the election therefore void, that they will de- feat annexation under both laws, if the Greater Birmingham act is declared un- constitutional. In this they are mistaken. If the law is valid and constitutional, they merely remain out until October next, unless they vote for annexation earlier than that date If the law is declared unconstitutional, they are already part of Birmingham and their officers are rightfully exercising municipal functions over that territory. If the Sigsbee de- cision stands, East Birmingham, Avon dale and Mountain Terrace are not a part of Birmingham, and unless they take some action towards annexation prior thereto, they will not pe part of Bir- mingham before October, 1909. Glen Iris having voted for annexation before the Greater Birmingham election, is not af- fected by the Sigsbee decision, and is properly part of the Ninth ward.
 ne AlucTnen AHeCLGus
 There is serious question, however, involved in Messrs. Causey, Mcdonald, Martin and Starbuck attempting to exer- else the rights and duties of aldermen since the Sigsbee decision. If there are no Tenth and Eleventh wards, there are no offi,es for them to fill, and they are not even de facto aldermen. If East Bir min do1o In a city, they would have no more right to sit as aldermen, than would two citizens Of Eyton and two from Graymont.
 In the case of Norton vs Shelby county
 in 11S United States, 425, MT. Justice Field speaking for the supreme court of the United States, said: Tt would be mis- application of terms to call one an officer who holds no office, and public office can exist only by force of law. An un- constitutional act is not law; it con- fers no rights; it imposes no duties; it affords no protection; it creates no of- flee; it is, in legal contemplation, as in operative as though 1t had never been passed"
 If there existed Tenth and Eleventh wards and these wards were entitled to two aldermen, and these gentlemen were filling these positions under color of of- flee, even though wrongfully, their acts would be valid, as they would be de facto officers But if there are no Tenth and Eleventh wards, their acts would be in- operative. There must be de jure office. for de facto officer to fill.
 There is only one hope for MT. Seals to be eligible for police commissioner, and that is for the Greater Birmingham act to be declared unconstitutional. This is on the ground that under the Sigsbee decision he was not citizen of Bir mingham at the time of his election. The only other ground on which the constitu- tionality of this act has been assailed, is on the question as to whether or not the senate journal shows that the bill was referred to a standing committee of the senate, was acted upon by such commit tee in session, and returned therefrom, which facts should affirmatively appear upon the journal of the senate. The pub lie is familiar with the desperate fight on this bill in the senate, and that 1t was saved five times by only one vote, and that on four occasions by the vote of the 
 lieutenant governor.
 Bill In the Senate.
 The journal shows that the bill was read the first time and referred to a commit tee, but the committee i~g not named; that it was taken from adverse cal endar by vote of the senate, and re- ported favorably to the senate by Senator Wilson of the mining and manufacturing committee. There is a statement in pa renthesis showing that the bill had been a6versed Sy the committee on local leg
 islaton, but does not appear to be more than a memorandum made by the clerk. The fact that the senate with 8 senators voting to take the bill from the adverse calendar and that notice of this was given by Senator Overton which affirma- lively appears in the senate journah seems to meet the constitutional require- ments, under the rules of the senate. It means loss of 5000 or 10000 popu- lation to Birmingham for the King law to be declared unconstitutional, even with the Tenth and Eleventh wards. I firmly believe, however, that we will not lose them The question just passed orf was decidedly more dangerous than the re- maining question here suggested, and yet unsettled. The authorities should have this settled without further delay. so we can get down to work for the next cen- sus. JERE c. KING. so<