674 So. 2d 77 | Ala. | 1995
These appeals are from orders of the Fayette Circuit Court issuing a writ of quo warranto excluding Hubert Norris from the office of supernumerary sheriff of Fayette *78 County. The issue is whether Norris, having pleaded guilty to felonies, can serve as supernumerary sheriff after receiving a pardon.
Norris became sheriff of Fayette County in June 1974. In 1989, the State of Alabama and the office of the United States attorney investigated Norris for various criminal misconduct. On April 18, 1989, Norris entered into a plea agreement with the Federal Government that required him to resign his office and plead guilty to an indictment that was to be returned by a federal grand jury. The plea agreement contained the following clauses:
"PLEA AGREEMENT
"Subject to approval by the United States Department of Justice, the United States and the defendant hereby agree to do the following in the order stated:
"1. The defendant will resign from the office of sheriff of Fayette County, Alabama.
"2. The defendant will execute the attached authorization which directs the Federal Bureau of Investigation to distribute money seized from the Fayette County Sheriffs Office on January 25, 1989, to the Internal Revenue Service, the Alabama Alcoholic Beverage Control Board, and the Alabama Bureau of Investigation, and the Fayette County Commission.1
"3. The United States will present the attached indictment to a Grand Jury.
"4. The defendant will plead guilty to the indictment.
"5. Pursuant to Rule 11(e)(1)(B), Fed.R.C.Tim.P., and upon the Court's acceptance of the aforesaid plea, the United States will recommend that the defendant be sentenced to custody for 37 months and be fined $25,000.
". . . .
"WITHDRAWAL OF PLEA NOT ALLOWED
"If the Court decides not to give the recommended sentence the defendant may not withdraw his plea of guilty."
On May 3, 1989, a federal grand jury indicted Norris for racketeering, bribery, and tax evasion. On May 4, 1989, Norris announced his intention to resign as sheriff. As reasons for resigning he cited his pending impeachment trial and criminal prosecutions. Norris resigned on May 5, 1989. The United States attorney, in accordance with the plea agreement, recommended to the United States district court that Norris be sentenced to 37 months in prison and be fined $25,000. The court accepted the plea and imposed the recommended sentence. After completing his sentence, Norris applied for and was granted a pardon from the Alabama State Board of Pardons and Paroles, with a restoration of his civil rights. Thereafter, Norris applied for supernumerary status, and then Governor Jim Folsom, Jr., appointed him to the office.
We must determine whether §
"When any person holding any office or place under the authority of this state is convicted by any court of the United States, of this state or of any other state of a felony, his office or place shall be vacated from the time of the conviction. If the judgment is reversed, new trial granted or judgment notwithstanding the verdict is rendered, he shall be restored to office; but, if pardoned, he shall not be restored to office."
(Emphasis added.)
In Hendrix v. Hunt
"We stated in State ex rel. Moore v. Blake,225 Ala. 124 ,126 ,142 So. 418 ,419 (1932), that the Legislature has the inherent power to prescribe qualifications for the holding of state offices of trust. In §36-9-2 , the Legislature has determined that an official convicted of a felony while holding a public office shall not be restored to office, even if he receives a pardon."
607 So.2d at 1256-57 (emphasis in original).
Norris argues that Hendrix is not controlling because he was appointed to a new office, that of supernumerary sheriff, not restored to the same office, that of sheriff. He also argues that because he resigned before the date of the conviction, he was not convicted of a felony while in office. We find no merit in either argument.
Norris contends that the office of supernumerary sheriff is separate and distinct from the office of sheriff. Without deciding whether §
"[O]ur disposition of the instant appeal is aided by the literal meaning of the word 'supernumerary.' The word is derived from two Latin words — super, above or beyond; and numerus, a number. Thus, these two words, when used in combination and translated, mean exceeding a prescribed number. The legislative employment of this term, as a means of providing compensation to public officials conditioned upon age and length of service, created an office of public trust with duties and responsibilities concomitant with its purpose and design. While its members are above and beyond the numbers prescribed for active sheriffs, and its duties are limited and contingent by its nature, its character is not reduced to something less than that of a public office. Indeed, the Act provides that each supernumerary sheriff shall take the oath of office prescribed for sheriffs."
392 So.2d at 1180.
This Court addressed a similar issue in Hogan v. Bronner,
"These provisions mandate the removal of a judge from his office as a retired judge under the judicial retirement law when he has been convicted of the crime of bribery committed while performing active duty as a judge. The removal from office of such a judge so convicted carries with it the forfeiture of the benefits of that office, including retirement benefits."
491 So.2d at 227.
Applying the principle of Hogan, we conclude that Norris's ability to serve in the position of supernumerary sheriff is derived solely from his ability to hold the office of sheriff.See §§
Finally, Norris argues that §
Accordingly, the orders of the circuit court must be, and they are hereby, affirmed.
AFFIRMED.
HOOPER, C.J., and HOUSTON and KENNEDY, JJ., concur.
BUTTS, J., concurs in the result.