Fox v. McDonald

HEAD, J.

On December 12, 1892, the General Assembly passed “An act to establish a Board of Commissioners of Police for the City of Birmingham, Alabama’;” which act provides for the appointment, by the probate judge in and for Jefferson county, of a board of commissioners of police for said city, consisting of five persons, and- defines its powers and duties , among which are to appoint a chief of police and such other police officers and policemen as is or may be prescribed by city ordinance, and to exercise full direction and control of the officers and members of the police force in conformity to existing and future laws and ordinances on the subject. Accordingly, the probate judge appointed five persons who entered upon the duties of their offices, and, as a board, appointed T. C. McDonald to the office of Chief of Police, who thereafter presented himself to David J. Fox, the mayor of the city, for qualification, and demanded that the oath of office be administered to him ; it being the duty of the mayor, under city ordinance, to administer the oaths of office to the officers of police. Fox declined to administer the oath, and McDonald applied to the city court of Birmingham for the writ of mandamus compelling him to do so. From an order of the court granting the peremptory writ, Fox appealed to this court.

This act is assailed by the appellant as unconstitutional, on several grounds. We will notice first, the chief contention , that it offends sections 1 and 2 of Article III of the constitution. These are as follows : “Article III. Distribution of Powers of Government. § 1. The powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to-wit: Those which are legislative, to one ; those which are executive, to another ; and those which are judicial, to another. § 2. No person, or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.” 14.is contended that the act in question is violative of these provisions for the reason, that the probate judge, upon whom the power of appointing the commissioners is conferred, is of the judicial department of the State government, while this power of appointment so conferred upon him properly belongs to the executive department, within the meaning of the constitutional provisions quoted.

To solve the question thus presented, we must learn what these provisions mean. Noticing th em analytically, we observe, first, that the general purpose of the article is the distribution of the powers of the government of the tUate; and to that end, it is declared first, that those powers shall be divided into three distinct ‘ ‘ departments” ; secondly, that each of these "departments” shall be confided to a separate “body of magistracy,” to-wit, those powers which are legislative, to one; those which are executive to another; and those which are judicial to another; and, thirdly, that no person, or collection of persons, being of one of those "departments” shall exercise any power properly belonging to either of the others, except in the instances expressly directed or permitted. Thus we see that the powers of government distributed are those which are divided into the three departments, and, by these three divisions or departments, confided to separate bodies of magistracy. First, then, what are we to understand by the terms “departments” and ‘ ‘body of magistracy,” as they are here used? How are these bodies of magistracy to whom these powers are to be confided to be created and made known? Of whom or what shall they consist? We get definite and complete information upon this subject from the three succeeding articles of the constitution itself, viz. : “Article TV. Legislative Department. §1. The legislative power'of this State shall be vested in a general assembly, which shall consist of a senate and house of representatives.” “Article V. Executive Department. §1. The executive department shall consist of a governor, secretary of state, state treasurer, state auditor, attorney general and superintendent of education, and a sheriff for each county. § 2. The supreme executive power of this State shall be vested in a chief magistrate who shall be styled The Governor of the State of Alabama.” “Article VI. Judicial Department. §1. The judicial power of the State shall be vested in the senate, sitting as a court of impeachment, a supreme court, circuit courts, courts of probate, such inferior courts of law and equity, to consist of not more than five members, as the general assembly may from time to time establish, and such persons as may be by law invested with powers of a judicial nature.”

The term “departments,” it will be observed, is first used to denote the three parts or divisions into which the powers of government are to be divided; but in the context it is used interchangeably with the' term “body of magistracy,” to denote the governing bodies to which the powers of government are respectively confided. Here then, we have a department or body-of magistracy, consisting of a senate and house of representatives to which is confided the legislative power; a department or body of magistracy consisting of a governor, secretary of state, state treasurer, state auditor, attorney general and superintendent of education, and a sheriff for each county, to which is confided the executive power, the supremo executive power being vested in the governor ; and a department, or body of magistracy, consisting of the senate, sitting as a court of impeachment, supreme court, circuit courts, courts of probate, such inferior courts of law and equity, to consist of not more than five members, as the general assembly may from time to time establish, and such persons as may be by law invested with powers of a judicial nature, to which is confided the judicial power, intended by the constitution to be distributed. When we speak, therefore, of the legislative department let us be understood to mean, as the constitution intends, the senate and house of representatives ; of the executive department, the governor and other officers above named with him ; and of the judicial department, the senate sitting as a court of impeachment, the courts and so forth, above named, as constituting that department. Keeping these definitions in view, we can the better determine the vital question' arising upon the contention now under discussion in this cause, which is, what powers of government does the constitution intend shall be confided to the exercise, respectively, of these several governing bodies? Now, it must be conceded that the powers thus vested in these several departments are intended to be committed to their exclusive exercise ; and this, independently of the provision that no person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others. Thus, for instance, the legislative power intended to be vested in the General Assembly can not be delegated to any other body, whether such body be of either the other defined departments or not, but must be exercised exclusively by the General Assembly itself. So also, an executive power intended to be vested in the executive department, can not, by legislation, be vested in any other person or body, whether such person or body be of either of the other departments or not. For instance, the pardoning power, or the power to fill vacancies in certain specified offices, being, by the constitution, vested in the Governor, can not, by legislation, be transferred to another, but must be exercised by the Governor exclusively. As this is so, in reference to acts expressly confided to a particular department, so also must it be true with reference to acts which, by construction or implication, are confided to that department. To repeat, all acts, expressly or impliedly, assigned to a department by the constitution must be performed by that department, and the power to perform them can not be conferred elsewhere. Cooley on Con. Lim., marg. p. 115. We return then to the question : What' powers does the constitution intend shall be thus confided to the exclusive exercise, respectively, of these several governing bodies? The insistence in argument of counsel for appellant, or that to which it leads, is, that, except in cases otherwise provided by the constitution itself, every act which is legislative in its nature and which pertains to, or in any wise affects, the government of the citizen, or which controls and regulates the conduct of citizens in their mutual intercourse, Wiheresoever, within the State, such government or control is to be accomplished, and for whatsoever purpose such accomplishment is intended, must be exercised by the state legislative department; that all acts which are of a judicial nature, affecting the government of the citizen, or pertaining to the enjoyment, enforcement or administration of the laws of the land, must be exercised by the state judicial department, or some member of it; and likewise-, that all such acts which are of an executive natiore must be exercised by the state executive department, ór one of the designated officers composing it. The argument is that the nature of the act to be performed must, in every instance, determine the question; and that nature being found to be legislative, executive or judicial, the performance of the act must be assigned to the appropriate state department. We are quite clear the contention takes a step too far./" Now, it is certain that all powers which are, by the constitution itself, expressly or by necessary implication, referred to the exclusive exercise of these - departments must be so exercised. There are many such provisions, but none of them provide for the appointment of officers of the kind here involved created by legislative enactment. All other powers, not expressly designated in the constitution itself, intended to be confided to the exclusive exercise of the departments thereby created, must be ascertained by eonstruction./Ut is a well settled principle that constitutions,, like statutes, are properly to be expounded in the light of .conditions existing at the time of their adoption; and we look at the antecedent government, consider its .-system, as a whole and in its several parts, and the experiences and practices of its administration ; and we consider and weigh the evils of the old system which the people intended to cure by the new. Thus aided, we interpret those provisions which require construction, and determine what the intention of the framers of the instrument was, and give effect to that intention; and it not infrequently occurs, in the exposition of written laws, both constitutional and statutory, that the letter of a provision will be justly made to. yield to a manifest intention in opposition - to it, derived by construction alone. When we take our constitution, therefore, and read it in the light of this history, we see plainly that it was not intended to declare that every act pertaining to government and the regulation of the social and property rights of the citizen, should be exercised exclusively by the legislative, executive or judicial department of the state government, or some member of it, according as the act possessed a legislative, executive or judicial character; for we find there are many such acts especially peculiar to the very nature of our system, and necessarily inherent in it, which, time out of mind, have not been exclusively exercised by these departments, and which, for the ease and efficiency of our systern, could not be so exercised./ For illustration, confine literally all power of a legislative nature to the General Assembly, and we strike down, at once, all governments of towns and cities, by and through municipal corporations, whose very existence and efficiency depend upon the legislative, executive and judicial powers with which, by their nature, they must be clothed, and which they have ever, under the legislative authority of the State alone, been accustomed to exercise. In the light of long established usage and experience, we construe the constitution and determine that its framers never intended to interfere with the right of municipal corporations, under legislative sanction, to exercise these functions of government. It is true, that under the present constitution, it may be said that the right to create municipal governments with their usual powers, is recognized or provided for, 'but with thei same provisions distributing the powers of government as]those now in force, contained in the constitutions of 1819, 1861 and 1865, and with no mention in those instruments of authority in the General Assembly to create municipal corporations, the General Assembly, from 1819 to the present time, has exercised that authority, and the corporations so created have exercised the powers so conferred, without objection or suggestion from any source that such exercise was not within constitutional authority, on the assumption that all legislative, executive and judicial power was, by the constitution, confided to certain other designated bodies of magistracy. When we read upon this subject, we find the books teach us that the spirit of localized government, by local territorial sub-divisions, carried on through subordinate governmental agencies, found early root and growth in the notions of English liberty and polity; and we are told that from an immemorial or early period ’the local territorial sub-divisions of England, such as shires, towns and parishes, enjoyed a degree of freedom, and were permitted to assess upon themselves their local burdens and to manage their local affairs ; and Judge Dillon declares that our ancestors, in the settlement of this country, brought these notions with them, and that they found here a field of unexampled extent for their free development. Accordingly,he says, the system of intrusting the direction of local affairs to the local constituencies, had from the earliest colonial periods been carried on by us to a much greater extent than in England; and, he observes, as you pass from one end of this country to the other, alike in the oldest regions and in the newest organized settlements, you find the affairs of each road district, school district, township, county, town and city locally self-managed, including the administration of local justice. This policy of creating local police and municipal corporations, he declares, is exhibited in all our legislation, and expressly or impliedly guaranteed in our State constitutions. And Judge Cooley, speaking of the powers of legislation commonly bestowed upon municipal corporations, says, that such bestowal is not to be considered as trenching upon the maxim that legislative power must not be delegated,_ since that maxim is to be understood in the light of thS immemorial practice of this country and of England, which has always recognized the propriety and policy of vesting in the municipal organizations certain powers of local regulation, in respect to which the parties immediately interested may fairly be supposed more competent to judge of their needs than any central authority. Cooley on Con. Lira., marg. p. 118. The conventions which framed our several constitutions, therefore, had no need to expressly reserve to municipal corporations the legislative, executive and judicial power, so long wont to be exercised by them, when, in the distribution of the powers of the government of the State, they declared that the legislative, executive and judicial power should be confided to the respective departments or bodies of magistracy by them created and defined. The reservation arose by implication out of the existing order of things. Again : if all functions of government of a legislative, excutive, or judicial character properly belong to, and are, therefore, tobe exercised'exclusively by, the several departments created bv the constitution, what shall become of tbe multiform powers and duties, wbicb by legislative enactment, without express constitutional authority, have so long been conferred upon, and exercised by, the various officers appointed to perform functions of government in the several counties, and who are not made members of either of those departments? Has it ever been thought that the executive and ministerial, and indeed, in some instances, the judicial, or quasi judicial functions of the tax assessor, tax collector, county treasurer, coroner, county surveyor and clerks of courts, to which may be added the officers and boards of control of our State institutions for the care of the insane and deaf, dumb and blind, and our State and county medical boards, for the preservation of the public health, properly belong to the several State bodies of magistracy created by the constitution, within the spirit and intent of that instrument, and must, therefore, be confided to the exclusive exercise of those bodies? None will so declare. Indeed, we have in our system, in opposition to the letter of the constitutional provisions under review, \ striking illustrations of the blending of legislative, ex-1 ecutive and judicial power in the same persons or bod-i ies, which it has not been, and will not be, supposed our \ several constitutions intended to inhibit. In Clay’s Di- J gest, and in each compilation of our laws since, we find the creation of a court of county commissioners. This body is an inferior court created, by law, and belongs, under express provision of each of our constitutions, to the judicial department of government; yet, we find, in its very creation, it was, and has ever since been, endowed with legislative and executive powers. In fact, its chief duties are of those characters. It is given the power to levy and assess taxes for the support of the county government, which is a legislative function. Cooley on Con. Lim., marg. pp. 479, 488. It is given power to direct and control the property of the county; to examine and audit the accounts of the receiving and disbursing officers of the county ; to make rules and regulations for the support of the poor; and it is given plenary and executive powers over the erection and maintenance of public roads, bridges and^ferries and the appointment of the necessary officers in that behalf. These are functions which do not inherently pertain to j;he judiciary, yet none will say, in view of their long continued and useful exercise by tbe court of county commissioners, without let or hindrance, that the constitution, in distributing the powers of government, intended to inhibit such exercise. So, also, the sheriff who is expressly made a member of the executive department, has ever been empowered, by legislation, to perform the judicial function of approving bonds necessary to be taken by him in the administration of the laws. Clerks, registers in chancery, commercial notaries and commissioners of deeds, under constitutions in terms confining judicial power to the courts, have long exercised, under legislative sanction only, the power of taking acknowledgments of conveyances, which this court has declared to be of a judicial nature. The coroner is so far an executive officer that he may execute process upon, and arrest the sheriff himself, who is, by the terms of the constitution, a member of the state executive department, and yet it has never been supposed that he may not, with constitutional favor, pei-form the judicial function of holding inquests. Other illustrations might be given, but these suffice to make clear the principle that the constitution must receive an enlarged and liberal interpretation, and the intention of its framers ascertained upon a broad view of the history and experience, the needs and usages of the time, and the great general purpose they had in view of framing a comprehensive and beneficent government. Thus viewed, we irresistibly conclude that it was not the intention of the constitution to declare that all these powers and duties, so indispensable to efficient government, and so long exercised, under legislative sanction only, by these officers and agencies of legislative creation, properly belong to the legislative, executive or judicial body of magistracy created by the constitution, because alone they may partake of a legislative, executive or judicial nature.

We come then to the concrete question : Does the,,power to fill vacancies in office by appointment “properly belong” to the executive department of the State government, to be exercised exclusively by that department, Avithin the meaning of the constitution? It may be regarded as a fundamental policy of our system of State governments in this country that the selection of persons to perform the, offices and functions of government shall be left to the^people themselves to be exercised at t-lie ballot box. Indeed tlie right and attribute of the people in respect of the selection of their own officers, by methods which they may prescribe in their written constitutions and laws, are so firmly fixed in our institutions that the people themselves could not throw them off, to the extent of destroying our republican forms of government, for the people of the States have confided to the central government of the United States the power and duty to guarantee to every State in the union a government republican in form. Section 4, Art. IV, Cons. U. S. The inherent nature and essence of the act of selecting officers of government, therefore, in view of this established policy, describe it as one properly belonging to the people, through the ballot, and not to any particular department of government to be exercised by representatives of the people. The. filling of vacancies in office pending the action of the people, by appointment of their representatives clothed by law with that authority, is, as a rule, an expedient merely, evoked by the convenience and necessities of government, growing out of the nature of our system. In the nature of things, the people can not be always called upon to act immediately when the selection of a person is necessary to the exercise of a function of government; hence, it has been customary and essential to provide other means of appointment in cases to which .this necessity gives rise. Furthermore, in our experience, wisdom has dictated that particular offices be filled exclusively by appointment of some governmental agency other than the vote of the people themselves, and this, and the agencies for such appointments, and the methods of filling vacancies in offices elective by the people, have been expressly manifested and prescribed in our constitutions or laws. It was necessary that they be so prescribed, for otherwise the right of such appointment resided nowhere ; it belonged to no department of the government. With us, the Governor has no prerogatives. He must find warrant in the written law for his every official act. He has no more power to appoint officers, when not expressly conferred, than has the president of the senate, who is of the legislative, or the chief justice of this court, who is of the judicial department; and when we go back to our constitution and laws in this State, from the beginning of the State government to the present, we -find it has been the policy to distribute this appointing power among the several departments of the State. We need not specify. The instances will readily occur to the minds of those familiar with the constitutions and laws. It may be true, that the Governor has been invested with the-greatest share of this power, but no principle or policy has been declared that the.power inherently belongs to him. And we may remark that the fact that all our constitutions, in assigning appointive power to the Governor, have specifically designated the particular officers to whom it applied, furnishes cogent ai’gument that the people did not regard the power as necessarily or inherently belonging to him.

In what we have said we have pretermitted inquiry whether or not the act of appointing an officer is inherently of an executive character ; and we have endeavored to show that whether so or not, it is not such an act as, upon a proper construction of the constitution, properly belongs to the executive department. The weight of authority joins issue upon the proposition that it is inherently of that character. The supreme court of California declares it possesses judicial characteristics. Says that court: “The person to be appointed is - required to have certain qualifications. Pie must be a citizen of the United States and of the State, and a resident and qualified voter of the city and county,'and he must be of good repute for honesty and .sobriety, and he ’is required to produce evidence to this effect. * * * * The examination of these questions, passing upon the sufficiency of the evidence, and determining whether the candidates possess the requisite qualifications, are certainly functions partaking essentially of a judicial character.” — People v. Provinces, 34 Cal. 520. In People v. Morgan, 90 Ill., on p. 562, it is said : “The executive power in a State is understood to be that power wherever lodged, which compels the laws to be enforced and obeyed." And the instrumentalities employed for that purpose are officers elected or appointed, who are charged with the enforcement of the laws. Bur the power to appoint is by no means an executive function unless made so by the organic law or legislative enactment. ” In Mayor of Baltimore v. State, 15 Md. 376, it is said: “We are not prepared to admit that the power of appointment to office is a function intrinsically executive, in the sense in which we understand the position to have been taken; namely, that it is inherent in, and necessarily belongs to, the executive department. Under some forms of government, it may be so regarded, but the reason does not apply to our system of checks and balances in the distribution of powers where the people are the source and fountain of government, exerting their will after the manner, and by instrumentalities specially provided in the constitution.”

In People v. Freeman, 80 Cal. 233, that court again held that the power of appointment to office is not essentially an executive function, and may be regulated by law. Judge Christiancy in People v. Hurlbut, 24 Mich. 44, had under consideration whether the legislature could appoint persons to fill offices created by it; and his purpose was to determine whether such appointment could be treated as a legislative act which it was competent for the legislature to perform ; and in discussing the question he says : “Besides the power to make general rules for the government of officers and persops, and regulating the rights and classes of persons or of the whole community, there is a large class of powers recognized as legislative, occupying an intermediate space between those of a judicial character on the one side, and the executive on the other, and which are not, and can not be, marked off from these by any clear line ; ” and further on he says: “As to this mode of appointment, being the exercise of a power essentially executive in its nature, it is sufficient to say that executive power can not always be defined by any fixed standard in the abstract. What would come within the executive power in our form of .government, would fall within the legislative in another, and vice versa. The question here is whether, under our constitution, it is executive or legislative ; and as the constitution has not confided the appointment of those or of the like officers to the executive authorities, and has left it to the legislative discretion, whether to create such offices, and how they shall be filled, it can not be truly said that such an appointment is any more in the nature of the exercise of an executive than a legislative power.” In harmony with these decisions see State v. Constantine, 42 Ohio St. 441; People v. Woodruff, 32 N. Y. 364. There are decisions to the contrary. — Taylor v. Commonwealth, 3 J. J. Marsh. 401; State v. Kennon, 7 Ohio St. 561; Achley’s Case, 4 Abb. Pr. 35; State v. Noble, 118 Ind. 350, and other cases from that State. These Indiana cases give the question full discussion, and they appear to be the only well considered cases in support of their doctrine. Mr. Freeman, in an exhaustive note in 13 Am-er. St. Rep., on p. 125, reviews all the authorities upon this.subject, and states his conclusion from them in the following language: “The truth is, that the power of appointing or electing to office does not necessarily and ordinarily belong to either the legislative, the executive or the judicial department. It is commonly exercised by the people, but the legi slature may, as the law making power, when not restrained by the constitution, provide for its exercise by either department of the government, or by any person or association of persons whom it may choose to designate for that purpose. It is an executive function when the law has committed it to the executive, a legislative function when the law has -committed it to the legislative, and a judicial function, or at least a function of a judge, when the law has committed it to any member or members of the judiciary.” What he has said meets with our approval.

It is again objected that the act is unconstitutional in that it denies to the city the right of local self-govern- , ment. This contention is based on the power given the probate judge to appoint the commissioners, and upon the further assumption that the act empowers him to appoint persons who are not members of the municipality, who do not reside within the city. There is no force in the objection so far as concerns the designation of the probate judge as the appointing power. We have reached the conclusion that the probate judge may lawfully appoint the commissioners. With that act his duties end. He takes no part in administering the. city government. The case is exactly the same as if the appointing power had been conferred upon the Governor, instead of the judge of probate, and we apprehend it would not be contended in that case, that the local government of the city was for that reason interfered with. The persons appointed commissioners exercise the functions of government conferred upon them by the act, and not the person who appoints them. But the other proposition may deserve more serious consideration. Upon mature reflection, we do not deem it necessary to decide what the effect upon the act would be, in respect of its constitutionality, if the construction of the act thus assumed be the correct one ; for, we reach the conclusion that it was not the intention of the legislature to authorize the appointment of persons who are not members of the municipal corporation for whose use the means of local government were, in part, being provided. The act is not carefully drawn. It is noticeable for the meagreness of its provisions, as well as the indefiniteness of some of those which are inserted. With this character, it is before us for construction. It is an act which relates alone to the local government of the city of Birmingham. Its controlling purpose, as all must know, was to provide an efficient enforcement of the police powers of the city. To this end, the legislature knew and intended that the commissioners to be appointed should be persons familiar with the govermental affairs of the city and the needs and wants of its police system, and who should be identified with the city’s interest. The commissioners are required to exercise full direction and control of the officers and members of the police force. They are required to hold meetings at all times when the public interest of the city may require. They are required to exercise constant supervision of the conduct of the police officers and to prefer accusations against them for wrongs and delinquencies committed by them which would justify their suspension or removal. These duties, which manifest themselves as the moving causes of the enactment, unmistakably imply necessity for the appointment of persons resident in the city and interested in its welfare, and their constant presence therein, without which their duties could not be well performed. Suppose the probate judge had appointed residents of the county of Mobile, for instance, to manage the police affairs of the city of Birmingham, would any one suppose, or could it be legitimately contended, that the legislature intended by this act to confer any such authority? The answer would at once be, No ! that the intention was that citizens of the municipality, to be affected by the legislation, be selected to perform these duties. Suppose, again, the legislature should create an office for the exercise of some State governmental function, and provide that the person to fill it should be appointed by the Governor, without providing that he should be a resident of the State, could it be contended that the Governor was empowered to appoint a resident of another State? and would the act be declared unconstitutional upon the assumption that, for that reason, it infringed local self government? We apprehend it would be at once construed that the Governor must appoint a resident of this State. Legislative enactments are always presumed to be of constitutional authority. It must clearly appear that they offend some provision of the constitution before the courts are authorized to set them aside. If a construction may be fairly indulged which will wrest them from the attack of giving offense to a constitutional limitation, that presumption shall be indulged. We are, therefore, of the opinion that the failure of the act to provide in express terms that the commissioners shall be residents of the city is due to legislative oversight, which is supplied by the general intention of the legislature that they shall be such, manifest upon the face of the act itself.

It is again objected that the act is unconstitutional because, by its provisions, the terms of the present police officers are cut off, when that object is not expressed in 'the title. This contention may fairly raise the question whether, upon a proper construction of the act, the ten-, ures of the present incumbents were cut off; but whether so or not, the parties have joined in a request that we construe the act and announce our opinion upon that question.

It is a principle self evident, as well .as declared in all the authorities upon the subject, that legislative enactments, and each and every provision therein, go into immediate operation, unless by force of some general law, or provision contained in the act itself, the operation is postponed to some future period or event; and the special provision which would create such postponement must be stated in express words to that effect, or in terms so clear and certain as to admit of no other rational interpretation. The principle of this strictness results from the obvious necessity that all men should know with certainty when our laws take effect. — Lane v. Kolb, 92 Ala. 636, 9 So. Rep. 873, and cases cited. Applying this rule to the act in question, and it cannot admit of doubt that the act wont into effect at least as early as the day of the first regular meeting of the Mayor and Aldermen of Birmingham, in January, 1893-’ — the time fixed in the act for the appointment of the commissioners.' There are no provisions which show, with the degree of certainty the rule requires, an intention to further postpone its operation . This is true, no't only with respect to the act as a whole, but to each and every provision thereof. The result is, that the power of the commissioners to appoint the police officers immediately arose, and all authority of the Mayor and Aldermen over their appointment and retention in office ceased. The persons in office being in by virtue of the appointive j>ower of the Mayor and Aldermen, the abrogation or withdrawal of that power, and the substitution -of a new appointive power in another body, necessarily, ipso facto, annulled the tenures of their appointees, there being nothing in the act retaining them in office. — Lane v. Kolb, supra; State ex rel v. Board, 7 Neb. 42. The mile is analogous to that which obtains in reference to agency. When the authority of an agent, who is empowered to appoint sub-agénts, is revoked by the principal, the authority of all existing sub-agents, so appointed, is likewise revoked. — Mecliem on Agency, § 270. These principles are so undeniable that it is unnecessary to do more than state them. The conclusion here reached does not determine that the act is unconstitutional upon the ground alleged that the purpose to accomplish such a result is not clearly expressed in its title. The title is, ‘ ‘ An act to establish a board of commissioners of police for the city of Birmingham, Alabama.” This implies the insertion in the act of all powers reasonably necessary to an efficient administration of the police department of the city by commissioners, which obviously includes power in the commissioners to appoint police officers. Such power, as we have already shown, has the effect, in itself, of cutting off the terms of incumbents. It follows, logically, from these imassailable propositions, that the title of the act was sufficiently comprehensive in the particular in question. — Board of Revenue v. Barber, 53 Ala. 589.

The next question arising is,- What was the mayor’s duty when McDonald presented himself for qualification ? This record shows that it does not admit of serious question that the mayor had most ample notice and knowledge, official and personal, of McDonald’s appointment. It was competent and necessary for the commissioners to organize for systematic work, by electing a presiding and a clerical officer. They did so by electing a chairman and secretary. The act says they must appoint a “clerk.” This they did by appointing a person charged with the duties of a clerk. That they designated him by the synonymous title of secretary is wholly immaterial. The duties of the officer were the same, whether, you call him clerk or secretary, and the nature of those duties is clearly implied in either designation. The law regards the substance, not the forms of things. The mayor of the city, as a principle of law, was bound to take official notice of the appointment of the commissioners, and of the necessary officers of their board by them elected. He knew, therefore, that Mudd was chairman and Boggan secretary or clerk. These officers duly certified to him McDonald’s appointment. Besides, the proof is most abundant that the mayor personally knew all the facts, and made no pretense that he did not, but based his refusal to act either upon the assumed unconstitutionality of the act, or the mistaken conception that the tenures of thoge in office were not cut off. The trial of the title to the office was not within his jurisdiction. That must haye been left to other tribunals. It was enough for him that McDonald presented a prima facie showing of his appointment emanating from the appointing power. This was done, and the oath of office should have been administered. There is clearly no merit in the suggestion that five days from McDonald’s appointment had expired when he presented himself, for he had been re-appointed within the five days. It is said there was no re-appointment, but a ratification merely of the original appointment, which, upon the principles of the law of ratification, had relation to the time of the appointment ratified. This is a mistaken view. There is no such principle as the ratification by the appointing power of the prior appointment of a public officer. If a person has been informally appointed and has done official acts under it, or if he has acted without qualification, his acts are validated by law as those of an officer de facto, and no intent of ratificationhj the appointing power could add anything to their validity. So also, if a person duly appointed fails to qualify, within the time prescribed by law, and thereby forfeits his right, a vacancy arises which the appointing power may fill. His failure to qualify can not be “ratified.” The appointing power can only fill the vacancy. Though the action of the commissioners, in the present instance, was put in the form of a ratification, its necessary legal effect was that of a reappointment. It was a clear act of the commissioners manifesting that thenceforth McDonald should be chief .of police, and this was duly certified to the corporate authorities. Nothing more was necessary to constitute an appointment .

The act required to be performed by the mayor was purely ministerial. There was no other adequate remedy to secure the right than mandamus. The city court properly granted the writ, and its judgment is affirmed.

Case Details

Case Name: Fox v. McDonald

Court Name: Supreme Court of Alabama

Date Published: Nov 15, 1893

Citation: 101 Ala. 51

Court Abbreviation: Ala.