41 So. 871 | Ala. | 1906
— The case, was heard and decided dismissing the petition, on March 18, 1905.
On March 24th, the relator made an application for a new trial, which was continued to be heard at an ad
The Code provides that appeals may be taken in quo warranto proceedings, within ten days after judgment, on application to the clerk giving security for costs of the appeal.—Code 1896, § 3437.
A motion for a new trial or rehearing seasonably made, suspends the judgment, and it does not become final, for the purposes of an appeal, until the motion is disposed of.—Florence Cotton Mill v. Field, 104 Ala. 471, 16 South. 538. The date for computing the time within which the appeal Could be taken, therefore, was the 22d of April, 1905, the date on which the motion for a new trial ivas denied.
The clerk of the court certifies that the petitioner did, on the 25th of April, 1905, pray for an appeal from said judgment, to the Supreme Court,, which appeal was granted on his giving security for the costs of the appeal.
The record shows, that on the same day, petitioner executed an appeal bond in the sum of $25, which was approved by the clerk of the court. The appeal, therefore, was in time.
The judgment entry recites: “Defendant demurs to petition as amended. It is considered and adjudged by the court, the demurrers to the ptittion as amended be and the same are hereby sustained. Plaintiff declines to plead further. The same being considered by the court, it is the order and judgment of the court that the information be dismissed at the cost of petitioner,” etc. This entry shows 'a proper judgment sustaining the demurrer.—McDonald v. A. M. R. Co., 123 Ala. 229, 26 South. 165, and authorities there cited; F. M. Co. v. W. R. of Ala., 128 Ala. 167, 29 South. 203.
Objection is raised, that H. W. Hamilton, was not joined as a party plaintiff. Section 3420 of the Code of 1896 provides for “an action in the name of the state (for usurpation of office or franchise) against the party offending: (1) When any persons usurps, intrudes into, or unlawfully holds 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
It is again insisted, and the court in its rulings on demurrer to petition so ruled, that the office of district trustee, under the. act of September 30, 1903 (Gen. Acts 1903, p. 289) is not a public office. In Montgomery v. State, 107 Ala. 372, 18 South. 157, quoting from 2 Spelling on Extraordinary Relief, § 1780, it was 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 quo 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.” See, also, to same effect, Dillon on Municipal Corporations, § 58.
In this case, according to the act referred to, the duties prescribed for the trustees were of legislative creation ; the duties were of a public character; the tenure of office was for a. definite period, and the emolument or pay was regulated by law; and under these conditions we have no difficulty in declaring the office to be a public one.
The testing of defendant’s title to the office of school trustee is the principal object of the proceeding. The said act makes no' provision for contesting the election of school trustee, and if plaintiff is not entitled to this writ, he is without remedy to oust Calvin Kitchens, the alleged usurper of the office, who, as alleged, is disqualified to hold said office, in that he’cannot read and write, and to which relator was regularly elected. If the facts stated in the petition' are true, the office has been
It was competent for the court, to issue a rule nisi, as prayed for, and on its return to try the case on the facts.
Our conclusion is, that the demurrer was improperly sustained to the amended petition,- for which the judgment below must be reversed.
Reversed and remanded.