45 So. 203 | Ala. | 1907
— This is an information in the nature of a quo warranto, filed by the state of Alabama, on the relation of M. K. Clements, against C. E. Frost; and by it the relator seeks to have the respondent ousted from holding the office of mayor of the town of Athens, on the ground that he is a usurper of the office. The respondent in his answer justified on the ground that he was duly elected to said office at an election held in said town on the 1st day of April, 1907, for the purpose of electing a mayor and councilmen, and that he received the certificate of his election from the proper official and was duly inducted into the office. A special replication (replication 4 as amended), in this language, was filed to the answer: “That at the time of said election, and at the time said certificate was issued to the said Frost by the sheriff of Limestone county, Ala., to the effect that said Frost had been duly elected to the office of mayor of Athens, said C. E. Frost was not a qualified elector of the town of Athens, and was not on the clay of said election, nor on the date of the issuance of said certificate, such qualified elector, in this: That said Frost was horn on October 2, 1861, and was due a poll tax for the year 1906, and had failed to pay the same on or before the 1st day of February, 3907.” Demurrers to this replication were overruled, issue was joined'on it, and
Courts take judicial knoAvledge of the charters of municipal corporations. Therefore Ave judicially know that the charter of the tOAvn of Athens provides that a person, to be eligible to the office of mayor, must be a qualified voted under the Iuavs of the state at the time of his election .or appointment. — Acts 1900-01, pp. 1037-1058. Section 178 (article 8) of the Constitution of 1901, in respect to poll tax, provides that, “to entitle a person to vote at any election by the people * * * he shall have paid, on or before the first day of February next preceding the date of the election at which he offers to vote, all poll taxes due from him for the year nineteen hundred and one, and for each subsequent year.” Section 194 (article 8) of that instrument is in this language: . “The poll tax mentioned in this article shall be one dollar and fifty cents upon each male inhabitant of the state, over' the age of twenty-one years, and under the age of forty-five years, AAdto would not noAV be exempt by laAV; but the Legislature is authorized to increase the maximum age fixed in this section to not more than sixty years. Such poll tax shall become due and payable on the first day of October in each year, and become delinquent on the first day of the next succeeding Feb
It is insisted by the appellant, and conceded by the appellee, that a person reaches a designated age on the day preceding the anniversary of his birth. — 1 Am. & Eng. Ency. Law (2d Ed.) 827; 15 Cyc. 290, note 1; 1 Chitty on Cont. (11th Ed.) 193, note “h”; 1 Redf. on Wills, *pp. 19, 20; Paine on Elections, pp. 731, 732; 1 Blk. Com. pp. 460, 463; 3 Page on Cont. § 851; 1 Salkeld, 44; 2 Salkeld, 625; Lenhart's Case, 33 Tex. Cr. R. 504, 27 S. W. 260; Ross v. Morrow, 85 Tex. 172, 19 S. W. 1090, 16 L. R. A. 542; Montoya de Antonio v. Miller, 7 N. M. 289, 34 Pac. 40, 21 L. R. A. 699. Assuming the correctness of this insistence and concession, in legal contemplation the respondent (appellant) completed his forty-fifth year on the 1st day of October, 1906; and for this reason he contends that he was not under. 45 years of age on that day, and, therefore, that he was not, under section 194 of the Constitution, subject to pay a poll tax for the year* 1906, because, he says, the tax “became due and payable” on that day.
According to the rule above adverted to it must be conceded that on October 1, 1906, the respondent was not under the age of 45, and was not liable to poll tax in the future; that on that day he became exempt from the payment of such tax. But this concession does not conclude the question at issue. Under the Code of 1876 (section 360) every person of full age was required to make to the tax assesor a full and correct description of all property owned by him on January 1st preceding the assessment. It was held in the case of Swann &
It appears from the information as amended that all details as to the usurpation charged against the respondent were stricken out, leaving only the general averment of usurpation. This amendment did not affect the sufficiency of the information on the ground of gener■ality in its averments (Jackson v. State, 143 Ala. 145, 42 South. 61) ; and, the answer setting up in justification that the respondent was elected mayor on the 1st day of April, 1907, and received the certificate of election, it was entirely in accord with the general averment of usurpation (made in the information) to aver, as was done in replication 4 as amended, the respondent’s ineligibility because not a qualified voter. Therefore the doctrine of departure is inapplicable to the replication. From the foregoing considerations it follows that the court committed no error in giving the affirmative charge which was requested in writing by the state.
The court sustained demurrers to some parts of the return as amended, and overruled the respondent’s motion to dismiss the information. These rulings are made the basis of assignments of error from 1 to 23 inclusive.
The same observations are pertinent to assignments of error 24, 25, 26, 27 28, and 29.
There is no error in the record available to appellant, and the judgment appealed from is affirmed.
Affirmed