| Ala. | Nov 15, 1904
This is a proceeding in the nature of a quo warranlo brought by the State of Alabama on the relation of S. J. Tillman. The ground of complaint averred in the information is usurpation by the respond
A demurrer was interposed by the respondent to the petition on- several grounds, the first four of which may be summed up as challenging the petition because of generality of averment, and the fifth for the reason that the petition is not verified.
The averments of the petition are, that the respondent ha,s usurped, intruded into and unlawfully holds, without warrant or authority of law, the office of judge of the inferior court of Bessemer, and claims to he clothed with the powers, etc., of such office, and is now exercising the powers, etc., of such office. These averments are substantially in the language of the statute. — § 3420, subdivision 1, Code 1896.
The State has the undoubted right to- require everyone who claims to hold, and is exercising the functions of a public office under constitutional or statutory provisions, to show a lawful right to hold such office and authority to exercise its functions, and it is unimportant that the suit is brought on the relation of a private person. — Montgomery v. State ex rel. Enslen, 107 Ala. 372" court="Ala." date_filed="1894-11-15" href="https://app.midpage.ai/document/montgomery-v-state-ex-rel-enslen-6516189?utm_source=webapp" opinion_id="6516189">107 Ala. 372.
In proceedings of this character, particularity of averment in the information as to the functions, powers, etc., exercised, is -not required, and it is sufficient to aver in general terms, designating the particular office, the usurpation, intrusion into-, and unlawful holding of the same; 17 Ency. Pl. & Pr., pp. 457, 458, 450. Nor is it necessary that the information be sworn to. The action of the court in overruling the demurrer was free from error.
The respondent by his answer admits, “That he is discharging the duties and functions of said office, and is now exercising the powers, jurisdictions and functions of the office,” etc., and, without any formal denial of the averment in the information of his usurpation and insrusion into and unlawful holding of the same, says, “That as his authority for discharging the duties of the said office, he would show and exhibit to this Honorable Court his commission, issued by Hon. W. D. Jelks, Governor of the State of Alabama, on the 3rd day of October, 1903, and approved by Hon. J. Tho-s. Heflin, Secretary of the
The answer was demurred to upon three several grounds; first, that it fails to- show that the respondent is entitled or'authorized to hold the office of judge of the inferior court of Bessemer; second, that it fails to show that the Governor had lawful authority to issue the commission; and third, “Because the appointment of the Governor of itself and alone does not show that the respondent is rightly i.n possession of or is entitled to exercise the powers and functions of the office of judge of the inferior court of Bessemer.” The demurrer to the answer ivas sustained by the court, and, the respondent declining to further plead, on motion of the relator, the court rendered a judgment of exclusion of the respondent from said office, and awarded execution against him for costs of suit.
The Governor of the State hasi authority to issue commissions to public office, or appoint to the same, when authorized to do so by laAV. When the State requires one, who claims to hold a public office, as it has the unquestionable right to do, to shoAv by what right and authority he holds and exercises the functions of said office, the duty and burden of showing a lawful right to the office is put upon the defendant. — State v. Harris, 36 Am. Dec. 462. In such a case it is not enough to- show AAdiat might be termed a bare prima facie right to the office, such as would be evidenced by the holding of a commission from the Chief Executive, but the inquiry reaches further than this, and requires that it be shoAvn that the Governor thereunto was laAvfully authorized to act. — State ex rel. Little v. Foster, 130 Ala. 154" court="Ala." date_filed="1900-11-15" href="https://app.midpage.ai/document/state-ex-rel-little-v-foster-6519060?utm_source=webapp" opinion_id="6519060">130 Ala. 154.
Non constat, the supposed authority upon Avhich the Governor claimed to act in issuing the commission, might be based upon a void statute — one void as offensive to some constitutional provision, and, if the' State should be required to take issue on the answer, the respondent, upon the introduction in evidence of his commission, would make good his plea, entitling him to judgment; or, if the State should be required to reply
The city court is open at all times for the trial of such cases, and the judgment, therefore, is not void nor irregular, in that it was rendered at another time than during the regular term of the court. — § 3424 of the Code of 1896.
The case of the State v. Crook, 123 Ala. 657" court="Ala." date_filed="1898-11-15" href="https://app.midpage.ai/document/state-ex-rel-crow-v-crook-6518295?utm_source=webapp" opinion_id="6518295">123 Ala. 657, is altogether different from the present one. That was a proceeding by mandamus, and the preliminary writ was made returnable before the judge in vacation, and was tried in vacation by the judge as such, and not sitting as á court. The trial here was by the city court.
We find no error in the record, and the judgment appealed from will be affirmed.
Affirmed.