7 Div. 13.
November 25, 1969.
Appeal from the Circuit Court, Etowah County, James B. Waid, J.
James F. Hinton, Gadsden, for appellant.
A statute of a state, making mere possession of purported obscene printed or written matter or materials a punishable offense, is unconstitutional. Stanley v. State of Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); Grounds 1 and 2 of Assignments of Error. A deputy clerk of the Etowah County Court has no authority to issue a search warrant. Code of Alabama, 1940, as recompiled 1951, Title 15, Section 100, Title 15, Section 399; Sopejak v. State, 42 Ala.App., 608, 173 So.2d 403; Brown v. State, 42 Ala. App. 429, 167 So.2d 281; Toole v. State, 170 Ala. 41, 54 So. 195; Knox v. State, 42 Ala. App. 578, 172 So.2d 787; Ground 3 of Assignments of Error.
MacDonald Gallion, Atty. Gen., and Lloyd G. Hart, Asst. Atty. Gen., for the State.
A deputy clerk is the alter ego of the Clerk, and has full power to transact all business of the clerk. Code of Alabama 1940, Recompiled 1958, Section 197(2) of Title 13; Wyres v. State, 32 Ala. App. 630, 29 So.2d 155.
"The State of Alabama, by its Solicitor, complains of Guy H. Mount that within Twelve months before the commencement of this prosecution, he did, with the knowledge of its contents, have in his possession obscene printed or written matter or material, other than mailable matter, contrary to law and against the peace and dignity of the State of Alabama."
The search warrant, dated August 4, 1965, was not issued by the County Court Clerk but by his assistant who used the clerk's name without any indication of deputization. The clerk was not in the courthouse when the affiant applied, nor did he appear before the clerk for the warrant of concern. See Act No. 91, June 27, 1963, p. 475; Womack v. State, 281 Ala. 499, 205 So.2d 579.
§ 4, Act No. 91, in part, reads:
"* * * [The clerk] shall have the power and authority to take affidavits and issue search warrants and warrants of arrest thereon, making same returnable to the court hereby established. * * * The court of county commissioners shall provide the clerk such deputies and assistants as may be reasonably necessary for the proper discharge of his duties. * * *"
We forego consideration of the various claims of unconstitutionality. Certainly, under Goolsby v. State, 213 Ala. 351, 104 So. 901, § 15 of Act 856, September 8, 1961, p. 1310, conflicts with Bailey v. Alabama, 219 U.S. 219, 31 S.Ct. 145, 55 L.Ed. 191. However, the State charged Mount with mere possession, an offense separate from commercial manucaption. § 4, Act 856, supra.
Under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, the issuance of a search warrant is a judicial function. The performance of judicial acts is nondelegable. Opinion of the Justices, 280 Ala. 653, 197 So.2d 456; Wright v. City of Demopolis, 45 Ala. App. 69, 223 So.2d 611.
We construe § 4 of Act 91 as not conferring judicial powers (as distinguished from clerical) on the deputies and assistants of the Clerk of the County Court. Constitution 1901, § 139.
Apart from the voidness of the warrant, we note that the alleged offending cinematic film was seized in Mount's home. We find nothing in the record to distinguish the facts here from those in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542.
The judgment below is due to be reversed and the defendant discharged sine die.
Reversed and rendered.