Montgomery v. State ex rel. Enslen, 107 Ala. 372

Montgomery v. State ex rel. Enslen

107 Ala. 372 | Ala. | 1894

COLEMAN, J.

The proceeding is by information in the nature of qvo warranto, and is prosecuted for the purpose of enquiring into the legality of the claim of the respondent to the office of Judge of the “Police Court of Birmingham.” Section 3170, authorizes the proceeding “ when any person usurps, intrudes into, or unlawfully *379holds, or exercises any public office, civil or military, or any franchise within this State, or any office in a corporation created by the authority of tills State.” Section 3171 of the Code, as amended by act of the legislature, 1892-3, p 789, provides that it may be brought without the direction of the judge, on the information of any person giving security for the cost of the action, &c. Bec'tion 3172 provides, that when the action is brought on the information of any person his name must be joined as plaintiff with the State. These provisions of the Code, seem to have been fully observed and complied with.

Section 17, Article IV of the constitution is as follows : “No senator or representative shall, during the term for which he shall have been elected, be appointed to auy civil office of profit under this State, which shall have been created, or the emoluments of which shall have been increased during such term, except such offices as may be filled by election of the people.” The information states and avers that the respondent was a representative of Jefferson county, Alabama, for the term of the legislature beginning on the 13 th of November, 1894, and that during the term, and while the respondent was a member, the legislature created and established an inferior court of criminal jurisdiction in the city of Birmingham, defined its powers and extent of its territorial jurisdiction, and provided for the election of a judge by the legislature. The act of the legislature is referred to in the information to show the character of the court, and that the office of the judge thereof “is a civil office of profit under this State,” within the meaning of the constitutional provision. The information further avers and states that the respondent, during the term and while a representative, was elected judge .of the court by the legislature of which he was a member thus created and established, and that soon after his election, he resigned his seat as a member of the legislature, and entered into said office as judge and exercised and continues to exercise the powers, privileges and duties thereof, contrary to the constitutional provision, and that he is unlawfully holding and exercising said office. The purpose of the information is not to ascertain whether some one else has a better right to the office than the respondent. No judgment of induction into office is sought. There is no element of a contested *380election in the case. The information is full and clear, and though there are several grounds of demurrer, to the information, there is but one, which, in our opinion, requires the consideration of this court. The demurrer raises the question, as to whether the office of “.Judge of the Police Court of Birmingham” is “a civil office of profit under this State,” within the meaning of Section 17, Article IV of the constitution, supra.

Similar constitutional provisions exist in many, if not all of the States of the Union, and the question has been before the various courts many times, as to what constitutes a civil office of profit within the constitutional provision. In Spelling on Extraordinary Relief, Vol. 2, § 1780, it is said : “There are three principal tests for determining whether one performing duties of a public nature is a public officer in the sense of subjecting his incumbency or employment to a <jm warranto proceeding; first, whether the sovereignty, either directly through legislative enactment or executive appointment, or indirectly, as through a municipal charter, is the source of authority ; second, whether the duties pertaining to the position are of a public character, — that is, due to the community in its political capacity; and, third, whether the tenure is fixed and permanent for a definite period fixed by law, unless for neglect of duty or malfeasance, or subject to termination at the will of others without the assignment of cause.”

Dillon on Municipal Corporations, section 58, discussing the question of officers and offices, uses the following language: “And-here, it is important to boar in mind the before mentioned distinction between State officers — that is, officers whose duties concern the State at large, or the general public although exercised within defined territorial limits — and municipal officers, whose functions relate exclusively to local concerns of the particular municipality. The administration of justice, the preservation of the public peace, and the like, although confided to local agencies are essentially matters of public concern; while the enforcement of municipal by-laws proper, the establishment of gas-works, of water-works, the construction of sewers, and the like, are matters which pertain to the municipality as distinguished from the State at large.”

In the case of Shelby v. Alcorn, 36 Miss. 273, constru*381ing a constitutional provision similar to ours, the court says : “The powers vested in the government of the State of Mississippi are either legislative, judicial, or executive; and these respective branches of power have been committed to separate bodies of magistracy. It follows, hence, that whether an office has been created by the constitution itself, or by statute enacted pursuant to its provisions, the incumbent, as a component member of one of the bodies of the magistracy, is vested with a portion of the power of the government, whether the portion of the power of the government which he is thus entitled to exercise is legislative, judicial, or executive in its character.

“Itis, therefore, undeniably true, as maintained by the counsel for the defendant in error, that the words ‘civil office under the State,’ contained in the article of the constitution above referred to, import an office in which is reposed some portion of the 'sovereign power of the State, and, of necessity, having some connection with the legislative, judicial, or executive department of the government:. It is a conclusion which is the necessary and logical result, of the theory of the government itself.”

The following citation from 3 Maine Rep. 481 on a similar question is in point: “Wo apprehend that the term ‘office’ implies a delegation of a portion of the sovereign power, and the possession of it by the person filling the office; .and the exercise of such power within legal limits, constitutes the correct discharge of the duties of such office. The. power thus delegated and possessed, may be a portion belonging sometimes to one of- the three great departments, and sometimes to another; still, itis a legal power, which may be rightfully exercised, and in its effects will bind the rights of others, and be subject to revision and correction only according to the standing laws of the State. An employment, merely, has none of these distinguishing features. A public agent ants only on behalf of his principal, the public, whose sanction is generally considered necessary t<> give the act performed the authority and power of a public act or law. And if the act be such as not to require such subsequent sanction, still itis only a species of service performed under public authority but not in execution of any standing laws......-It ap*382pears, then, that every office, in the constitutional meaning of the term, implies an authority to exercise some portion of the sovereign power, either in making, administering, or executing the laws.”

In the case of the State ex rel. Att’y Gen’l v. Valle, 41 Mo. 31, it is said : “In a certain popular acceptation, the words civil office, under this State might possibly be interpreted to mean State officers in the sense of participating directly in the administration of the State government as such; but they are none the less civil officers under this State because their functions are confined to the local administration. The offices are created and the officers are appointed, and their powers given, and their duties defined, and their salaries fixed, directly by act of the Legislature. They exercise a share of the powers of civil government, and their authority comes directly from the State. They are to be considered as much civil officers under this State as the judge of a court, or the mayor of the city. They would be none the less so if appointed by the mayor ; for they would still derive all their powers from the act which creates the office. The mode of appointm mt is not material.” The facts of the present case do not require us to go so far as the Missouri court.

Many authorities might be added if it were deemed necessary, in line with those cited. A reading of the act establishing the court leaves no doubt, that the office of Judge of “The Police Court of Birmingham,” is a civil office of profit under this State.” The first section among other things declares, that it “shall have exclusive jurisdiction of all offenses against the by-laws and ordinances passed and ordained by the mayor and aider-men of Birmingham within the territory now embraced in the police jurisdiction of said city, and of all misdemeanors committed in precincts twenty-one (21.) and thirty-seven (37) in Jefferson county, except violations of the revenue laws of the State, of which offenses it shall not have jurisdiction ; and it shall also have the power to examine all persons char’ged with felonies, and to commit the same to jail, admit them to bail, or discharge them, as the law and evidence in every case may require.”

“Sec. 2. Be it further enacted, That the judge of said court shall be elected by the general assembly, and *383to hold office for the term of four years, and until his successor is elected and qualified. He shall be learned in the law and have resided in Jefferson county for one year next before his election, and must reside therein while in said office. Such judge shall have the-power to administer oaths and take affidavits in all cases in which affidavits are required by law, to take recognizance's, admit to bail, approve bail bonds in or out of court, and do every act, and issue every process, mesne or final, necessary to effect the due administration of the laws in the cases or offenses, jurisdiction of or power over which are conferred by this act. He may be impeached and removed from office for the same causes and in the same manner as circuit judges are impeached and removed; he shall receive annually the salary of fifteen hundred dollars to be paid in monthly instalments out of the treasury of the mayor and aldermen of the city of Birmingham.”

“Sec.-5. Be it further enacted, That whenever any person, is tried in said court for an offense of which said court has jurisdiction, he shall not be again tried in any court for the same offense, but- the judgment of said court shall be a bar to any subsequent prosecution for the act for which he was tried in said police court.”

Tn fact the entire act shows conclusively that it is an office within the meaning of the Constitution, and the election of a member of the house of representatives, as judge of the court, to be within the evil intended to be provided against by the Constitution.

The demurrer also raises the further question of the constitutionality of the act of February '21st, 1893, (Acts of 1892-3, p. 789). It is contended that the act violates section 2, article 4 of the Constitution, which declares that “Each law shall contain but one subject which shall be clearly expressed in its title * * * * and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred, shall bo re-enacted and published at length.” The. act is entitled “An act to- amend sections 3171, 3178 and 3183 of the Code of Alabama.” The act begins as follows : “Section 1. Be it enacted by the General Assembly of Alabama, That sections 3171, 3178 and 3183 of the Code of Alabama be amended *384so as to road as follows : “Section 3171.” Then follow the sections as amended, in full. Appellant contends that under the Constitution, it was necessary to set out the sections proposed to be amended as they were in the Code, and then as amended should be set out at length. There are some few decisions which support this con* struction of the constitutional provision, but the very great weight of authority is opposed to this view, and we do not think the language of the Constitution, in view of the evil intended to be guarded against, requires such a construction. The generally adopted constmction of similar constitutional provisions is, that ‘ ‘it is a sufficient compliance with the requirement to set out the law as amended without reciting the old law as it stood before the amendment.” — State v. Bennett, 102 Mo. 364; Bush v. Indianapolis, 120 Ind. 476; State v. Amer. Forcite Co,, 50 N. J. 275. A great many authorities arc collected in the notes to the text in 23 Amer. & Eng. Ency. of Law, p. 281, This construction has also been recognized in this State in the case of Wilkinson v. Ketler, 59 Ala. 306; State v. Warford, 84 Ala. 15; Dunbar v. Frazier, 78 Ala. 538.

We do not think the act sxxbject to the constitutional objectioxx xxrged against it. Section 4316 was a general provision, providing for the contingencies therein mentioned, and would have applied, independent of such provision in the act under consideration.

Instead of making a formal and, we should add, a legal return to the information, respondent merely denied each and every averment of fact contained in the information. The rule in proceedings of this character, where the respondent admits that he is holding and exercising the powers and duties of the office,devolves upon him (he burden of showing by what authority he holds the-office, and that he is in the rightful exercise of its dirties and powers. The State has the undoubted right to require of every one, who'claims to hold and does hold a public office under its statutory or constitutional provisions, to show a lawful authority for the exercise of its powers and privileges, and this rule is not- changed, by the statutory provision which permits a private person to join with the State in the enquiry by quo-warranto. The denial of the respondent that he held the office, and his further denial that he had or was then exercisir g its *385powers and privileges imposed upon the State to make good these averments of facts. Legal evidence was introduced on the part of the State, and which was not controverted, fully sustaining the averments. Having introduced evidence that the respondent was holding and exercising the powers and duties of a civil office of profit under the State, the burden then devolved upon the respondent to show a lawful authority. Failing in this, the judgment of ouster or exclusion must follow. The respondent introduced no evidence, and did not undertake to meet the burden cast upon him. It is not a matter of which the respondent can complain that the State went further and undertook to identify him as the member of the legislature, which created and established the court, and had there been error in admitting evidence for the purpose of identification, it was error without prejudice to respondent. It had been shown that respondent was holding a civil office of profit under the State. Here the State might well have rested, and unless the respondent removed the burden placed upon him by such proof, the State was entitled to judgment of ouster or exclusion. We deem it, therefore, unnecessary to consider whether the court erred in requiring the respondent to answer whether he was not the same person who was a member of the legislature during the term in which the office was created.

The appellant contends that he was not tried by a legal jury. The act of February 21, 1893, p. 789, provides for trial by a jury on the demand of either party, and the act requires, that-when a jury is demanded, it shall bo drawn as required by section 4316 of the Code. The contention is, as we understand from the argument of counsel for appellant, that the trial coming on to be heard during term time of the circuit court there was no authority for summoning a jury under section 4316 of the Code. The record shows that there had been no jury summoned for the week during which this cause came on to be heard, that it was a “non-jury” week of the term. The very contingency existed provided for in section 4316 of the Code, and we do not see wherein the court failed in duty in organizing the jury, The statute (Acts, 1892-93, Nuprct) declares that the circuit courts shall be always open and in session for the trial of such cases, and of the taking of all lawful proceeding therein.

*386There are a great many exceptions and assignments of error, nearly all of which are purely technical. We have passed upon such as, in our opinion, deserve the consideration of this court. We find no error in the record of which appellant can complain.

Affirmed.