115 So. 392 | Ala. | 1928
As repeatedly held by this court, the information in cases of this sort is sufficient, if it avers in general terms that the respondent usurps, intrudes into, and unlawfully holds a designated public office. Jackson v. State ex rel.,
The answer, it will be observed, denies *267 that the respondent usurps, or unlawfully holds, the office in question, and affirms that he holds it "by virtue of appointment made, and commission issued," by the Governor; averring further that:
"Said office was vacant, and the said Governor had authority to make said appointment and to issue the commission which respondent holds therefor."
The respondent insists that this answer sufficiently shows that he is lawfully holding the office, and insists, further, that it is not subject to any of the grounds of demurrer.
In this proceeding, when the state has shown, or the respondent has admitted, that the respondent is holding and exercising the powers and duties of a public office under the state, he must then show "by what authority he holds the office, and that he is in the rightful exercise of its duties and powers." Montgomery v. State ex rel. Enslen,
In accordance with this rule as to the burden of proof, the respondent's answer must assume the burden, and must allege the facts which are necessary to show that he lawfully holds the office, and rightfully exercises its duties and powers. As said in Jackson v. State ex rel. Tillman,
"In such a case it is not enough to show what 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 shown that the Governor thereunto was lawfully authorized to act. State ex rel. Little v. Foster,
"Non constat," it was further observed, "the supposed authority upon which 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 specially to such a plea, the burden would be changed from that of the defendant, showing his lawful right and authority, to the state, showing a want of such right and authority."
Here, the answer sets up a commission from the Governor, and also avers in general terms that the Governor had authority to appoint the respondent, and to issue to him the commission.
As we have seen, the burden is upon him to show the facts necessary to render his holding lawful. This includes, not merely the general authority of the Governor to appoint, but also the qualifications of the appointee as prescribed by law, without which the appointment would be invalid and the commission nugatory.
Our conclusion is that neither a general denial of usurpation and unlawful holding, nor a general affirmation of gubernatorial authority to appoint and commission, is sufficient as against a ground of demurrer aptly pointing out the omission of the averment of any particular fact which is necessary to render the respondent's holding lawful, and as to which the burden of proof is upon him.
One of the qualifications prescribed by law for the incumbent of this office is that he "shall be licensed to practice law." Local Acts 1927, p. 202. As to this qualification, as well as others, the burden was upon the respondent to show that he possessed it; and equally — the omission of an affirmative averment in his answer being aptly pointed out and objected to by demurrer — to aver his possession of the qualification. As to this ground, at least, the demurrer was properly sustained.
The judgment entry shows that after the demurrer was sustained the case was called at a later date, when the respondent declined to plead further. On that showing the court properly proceeded to render final judgment against the respondent, ousting and excluding him from the office. Jackson v. State ex rel. Tillman,
No error appearing, the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur. *268
