89 So. 500 | Ala. | 1921
Lead Opinion
In January, 1917, respondent Batson was by Hon. S. L. Brewer, then just beginning a term of six years as judge of the Fifth judicial circuit, appointed register of the circuit court of Coosa county under authority of the Act of September 25, 1915, infra. By the Act of September 30, 1919 (Acts 1919, p. 858), the county of Coosa was taken without the Fifth circuit and attached to the Eighteenth, a new circuit. Hon. E. J. Garrison was appointed judge of the new circuit, and held office until the next election, in November, 1920, at which time Hon. W. L. Longshore was elected to fill the unexpired term. In the meantime, by the Act of August 16, 1915 (Acts 1915, p. 279), which took effect on the first Monday after the second Tuesday in January, 1917, all the jurisdiction and powers of the chancery court were conferred upon the circuit court, and the former was consolidated into the latter. Section 12 of the Act of September 25, 1915 (Acts 1915, p. 809 et seq.), provided that a register of the circuit court of each county should be appointed by the judge of the circuit, or, where there are more than one judge, by the presiding judge, sitting in equity division, as of course (section 3A, Id.). It was there (section 12) further provided that the register so appointed should perform "all the duties heretofore required of registers in chancery by law," and should "hold office for the term of the judge appointing him, but subject to removal at the pleasure of the judge by order entered on the minutes of the court." Proceeding, evidently, either upon the theory that the respondent's term of office had expired, or upon the authority of the last-quoted provision of the Act of September 25, 1915, one or both, Judge Longshore, on January 25 of the current year appointed petitioner, appellee Pond, register of the circuit court of Coosa county, and, respondent refusing to vacate the office, did on the next day spread upon the minutes an order removing respondent, no cause therefor being stated. By his application for the writ of quo warranto petitioner, appellee, sought the judgment of the court excluding respondent from office, and, as provided by section 5462 of the Code, a judgment upon petitioner's right.
As for respondent's term of office, whether that term is affected by section 163 of the Constitution, or by section 12 of the Act of September 25, 1915, alone, it was and is coextensive with the term of the judge making the appointment. That term was six years, and we apprehend that the fact that the county of Coosa has been detached from the circuit presided over by the judge who made the appointment has not affected the right of respondent to his office. The judge could not be detached from his term except by impeachment, and under the plain letter of the Constitution and statute respondent took office for a term of six years, for that was then the term of the appointing judge, and that term is as yet unexpired.
Now as to the last-quoted provision of the Act of September 25, 1915: Respondent contends that so much thereof as makes the register of the circuit court "subject to removal at the pleasure of the judge by order entered upon the minutes of the court" is *319
void, as opposed to section 175 of the Constitution. Under the terms of the section just referred to "the clerks of the circuit courts, or courts of like jurisdiction," and other named county officers, "and all other county officers * * * may be removed from office for any of the causes specified in section 173 of the Constitution" — that is, impeachment before a jury, and not otherwise. Touart v. Callaghan,
However, while we hold that registers of the circuit court are not county officers, within the meaning of section 175 of the Constitution, our judgment, based upon the considerations to which we have adverted, is that they hold office under the protection of section 166 of the Constitution, quoted above, and that so much of section 12 of the Act of September 25, 1915, as purports to make them "subject to removal at the pleasure of the judge by order entered on the minutes of the court," is too broadly expressed. It results that the order purporting to remove respondent from office was made without authority of law, in that no cause for his removal was entered at length — or at all — upon the minutes of the court.
The judgment of the circuit court is reversed, and appellee's petition will be dismissed out of court.
Reversed and rendered.
All the Justices concur.
Dissenting Opinion
Enacting in accordance with the authority conferred by sections 148, 171, of the Constitution of 1901, the Legislature abolished all chancery courts in this state. Gen. Acts 1915, pp. 279, 280. The legislative intent to abolish all chancery courts appears, expressly, in section 5 of the act cited. This action consisted with the authority thus stated in Constitution, § 171:
"The Legislature shall have the power to abolish any court, except the Supreme and the probate courts, whenever its jurisdiction and functions have been conferred upon some other court."
The "jurisdiction and functions" of the chancery courts were conferred, by the cited act of 1915, upon the circuit courts, and *320
thereupon, by the act cited, the chancery courts were abolished, as declared in section 5 thereof. The obviously sound pronouncement in both Smith v. Stiles,
It is only trite to observe that, since the abolition of the chancery courts and the offices of chancellor and register in chancery, no such constitutional offices as chancellor and register in chancery have existed or now exist. The chancellor and the register in chancery mentioned in Constitution, § 166, having had no existence since the abolition effected by the cited act of 1915, no possible repository of the power of removal therein provided, viz. the chancellor, and no possible object, viz. the register, upon whose tenure it might be exercised, have existed since the abolition was thus effected. It results, necessarily, that circuit judges are not chancellors within the purview of Constitution, § 166. The "register of the circuit court," created by section 12 of the Act approved September 25, 1915 (Gen. Acts 1915, pp. 811, 812), is not the register in chancery mentioned in the Constitution (section 166, among others). The register created by the cited act is a purely statutory "county officer." Touart v. State ex rel.,
The provision of section 12 of the cited act (Gen. Acts 1915, p. 811), undertaking to authorize the removal of the "register of the circuit court" at the pleasure of the judge, is, hence, in conflict with sections 173 and 175 of the Constitution, and void; impeachment, as therein provided, being the exclusive method for the removal of such "county officers" — a method that assures the "register of the circuit court" a trial pursuant to due course of law. The circuit judge was and is without power, for any cause, to remove the register of the circuit court of Coosa county; he (Batson) having been duly appointed by Circuit Judge Brewer in January, 1917, and entitled, unless removed under sections 173, 175, of the Constitution, to hold and serve in the office of register of that circuit court for the full term of six years.
The decision in Osborn v. Henry,
Hence the writer withdraws his concurrence from the opinion delivered on original consideration, and holds that the application for rehearing should be overruled, for the reasons hereinabove stated.
ANDERSON, C. J., and THOMAS, J., concur in the opinion of McCLELLAN, J.
Addendum
Rehearing denied.
