Petition of Arthur Lee White for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in White v. City of Birmingham, 130 So.2d 231.
The only questions dealt with in the Court of Appeals' opinion were the city's motion to strike the transcript of the evidence, which was granted, and the action of the trial court in overruling petitioner's motion to quash the complaint, which was held to be without error. The petition does not charge error in either of those respects. Instead, it states the following as a basis for award of the writ:
It is to be noted that the grounds of the demurrer, like the grounds of the petition for certiorari, assert that the ordinance is unconstitutional "as applied" to petitioner. It is not charged that the ordinance is unconstitutional on its face. Accordingly, there could be no basis for determining the constitutionality of the ordinance when applied to petitioner in the absence of facts showing such unconstitutional application. Since there was no pleading showing such facts, and the transcript of the evidence being stricken, there was no basis for the Court of Appeals to determine such constitutional question. Undoubtedly, that is the reason the Court of Appeals made no mention in its opinion of the trial court's ruling on the demurrer.
The Court of Appeals held, and we think without error, that "the record proper is in all things regular." Therefore, unless the transcript of the evidence, even though stricken, should have been examined by the Court of Appeals, and the constitutionality of the ordinance "as applied" to petitioner determined from such examination, the Court of Appeals did not err in pretermitting determination of the constitutional question. In Pate v. State, 244 Ala. 396, 14 So.2d 251, 255, it was held that the examination of a bill of expections which had been stricken, in order to determine whether there had been compliance with the Fourteenth
See Michel v. State of Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83.
We think the Pate case is of controlling influence here and that the Court of Appeals acted properly in not examining the transcript of the evidence.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur.