The intention of the Legislature in enacting the statute was to use the word "salary" in its broader sense and to include compensation paid to firemen. Brandon v. Askew, 172 Ala. 160, 54 So. 605; Coe v. Dothan, 19 Ala. App. 33, 94 So. 186. Harry Seale, of Mobile, for appellee.

Title to an office cannot be tried in an action to recover salary incident thereto. 43 C. J. 688; Coe v. Dothan, 19 Ala. App. 33, 94 So. 186; Walden v. Headland, 156 Ala. 562, 47 So. 79. Appellant had no fixed term nor any fixed salary, and hence cannot recover for the time during which he did not perform any duties. Local Acts 1923, p. 16; Stone v. State, 18 Ala. App. 228, 89 So. 824; 46 C. J. 964. Payment of salary to acting solicitor claiming the office by appointment under an act of the Legislature later declared unconstitutional is a valid defense to an action for the salary brought by the former incumbent. Walden v. Headland, supra; Coe v. Dothan, supra; Hittell v. Chicago, 327 Ill. 443, 158 N.E. 683, 55 A.L.R. 997; People v. Schmidt, 281 Ill. 211, 117 N.E. 1037, L.R.A. 1918C, 373.

He was a de facto officer, and his acts were valid and binding. Coe v. City of Dothan, 19 Ala. App. 33, 94 So. 186; Heath v. State, 36 Ala. 273. The provisions of section 6 of the Constitution do not apply to investigation of collateral preliminary matters. Hussey v. State, 87 Ala. 121, 6 So. 420. Whether defendant must be present in such matters is within the discretion of the court.

We observed in Ex parte Register, 257 Ala. 408, 60 So.2d 41(10), that "A de facto officer is one who exercises the duties of a de jure office under color of appointment or election, and his official acts are valid. Heath v. State, 36 Ala. 273." See also Coe v. City of Dothan, 19 Ala. App. 33, 94 So. 186(1). Although the legislature at the time the Board sat in judgment had passed an act providing for a six-member Board, the appointments to office authorized had not been made.

The fact of his disqualification cannot be inquired into by the use of the writ of mandamus. Coe v. City of Dothan, 19 Ala. App. 33, 94 So. 186; Lockhart v. City of Troy, 48 Ala. 579 (5). It is also insisted that the appointment of the election officers on Saturday, April 19, 1952, was void in that it was prohibited by section 349, Title 17, Code, because the board did not wait until the executive committee certified a list to them as there authorized; and that it became the ministerial duty of the board to name the persons so certified. This contention assumes that the board must wait until the last possible moment to see if the committee shall so certify a proposed list, and cannot act in making the appointment until the committee acts or manifests a purpose not to do so, and that the selection or appointment by the board is ministerial.

Count one of the complaint here is not a common count for services rendered or to have been rendered under contract. It is for his salary as a police officer which is alleged to be unpaid, and was not shown to have been paid to a rival claimant as in Walden v. Headland, 156 Ala. 562, 47 So. 79; Coe v. Dothan, 19 Ala. App. 33, 94 So. 186. It should be treated as an appropriate count in debt, suing to recover an amount due and owing by virtue of law, and not by contract. And is not within the authority of the Henry case, supra.

Code, § 1899; Gadsden v. Jones, 227 Ala. 395, 150 So. 359. If appellee was removed by appellant and another appointed in his stead, then mandamus was not the proper remedy. Goodwyn v. Sherer, 145 Ala. 501, 40 So. 279; Smith v. McQueen, 232 Ala. 90, 166 So. 788; State v. Thompson, 211 Ala. 429, 100 So. 756; Coe v. Dothan, 19 Ala. App. 33, 94 So. 186. W. F. McDonnell, of Sheffield, and Ed Almon Williams, of Tuscumbia, for appellee.

A person holding a de jure office under color of an appointment by or pursuant to an unconstitutional statute, before the same is adjudged to be such, is a de facto officer. Coe v. Dothan, 19 Ala. App. 33, 94 So. 186; Cooper v. State, 226 Ala. 288, 147 So. 432; Ex parte State, 142 Ala. 87, 38 So. 835, 110 Am.St.Rep. 20; Norton v. Shelby County, 118 U.S. 425, 426, 6 S.Ct. 1121, 30 L.Ed. 178; State v. Carroll, 38 Conn. 449, 9 Am.Rep. 409; State v. Hawkins, 229 Ala. 144, 155 So. 692; Walker v. State, 142 Ala. 7, 10, 39 So. 242. A de jure officer who has been wrongfully excluded from his office may recover of the de facto officer the salary paid to him during such period of exclusion of the rightful officer. Albright v. Sandoval, 216 U.S. 331, 30 S.Ct. 318, 54 L.Ed. 502; Code 1923, § 2583; Coughlin v. McElroy, 74 Conn. 397, 50 A. 1025, 92 Am.St.Rep. 224; Farr v. Neeley, 66 Colo. 70, 179 P. 139; Holcomb v. Spikes (Tex.Civ.App.) 249 S.W. 516; Kessel v. Yeiser, 102 N.Y. 114, 6 N.E. 574, 55 Am. Rep. 769; Kreitz v. Behrensmeyer, 149 Ill. 496, 36 N.E. 983, 24 L.R.A. 59; Mechem, Public Officers, p. 218; Rice v. Tevis' Adm'r (Ky.) 50 S.W. 1101; State ex rel. Abington v. Reynolds, 280 Mo. 446, 218 S.W. 334; Wi

Criminal responsibility for violation of official duties extends to de facto, as well as de jure, officers; particularly in cases of embezzlement. 46 C.J. 1062; Pentecost v. State, 107 Ala. 81, 18 So. 146; Noble v. State, 59 Ala. 73; Diggs v. State, 49 Ala. 311. One who holds an office under appointment or election giving color of title may be a de facto officer, although the appointment or election is irregular or invalid, or though he has been appointed by an authority not competent under the law to make the appointment, and even though title is derived from an unconstitutional statute. 46 C.J. 1057; Irwin v. Jefferson County, 228 Ala. 609, 154 So. 589; Martin v. Crook, 155 Ala. 198, 46 So. 482; Ex parte State, 142 Ala. 87, 38 So. 835, 110 Am.St.Rep. 20; Coe v. Dothan, 19 Ala. App. 33, 94 So. 186; Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178; Mechem on Public Officers, 213, 218; Troop on Public Officers, 602. The office is provided for by law. Code 1923, §§ 421, 6723.

While some of the powers attempted to be granted to this municipality may not be valid, its existence as a municipality can not be collaterally assailed in a proceeding of this nature. Merrell v. St. Petersburg, 74 Fla. 194, 76 So. R. 699; Bateman v. Florida Commercial Co., 26 Fla. 423, 8 So. R. 51; Enterprise v. State, 29 Fla. 128, 10 So. R. 740; State v. Sarasota, 109 So. R. 473; Morgan's Ect. R. R. v. White, etc. (La.) 68 So. R. 130; Story Piano Co. v. Ottawa Circuit Judge, 179 N.W. Rep. 254; Pefifer v. Klug, 219 Pac. Rep. 498; Coe v. City of Dothan (Ala.) 94 So. R. 186; 43 C. J. 99, 619. Of course, defenses which do not involve the question of corporate existence, and which could be made regardless of whether or not the municipality is a duly constituted corporation, are not precluded by the rule just stated. In Stewart v. Daytona, etc. District, 114 So. R. 545, the existence of the District was not under consideration, but the actions of the commissioners in issuing the bonds were held illegal because the Statute under which they acted transcended legislative authority in that it attempted to delegate to a statutory administrative board unlimited powers of taxation.