101 Ala. 51 | Ala. | 1893
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 pow
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
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
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
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 under
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;
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 constitution
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 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
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.
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