83 So. 49 | Ala. | 1919
Lead Opinion
The majority of the court, consisting of Justice MAYFIELD, SAYRE, SOMERVILLE, GARDNER, and THOMAS, are of the opinion that quo warranto will lie in this case, and the following is their opinion:
It was not decided in the Sanders Case,
It seems perfectly clear and certain that they were both officers, and were both public officers; but not such or the kind of officers, and that the office, position, or place which they filled was not one of the offices, within the meaning of the section of the Constitution or of the Code which was there before the court for construction.
It was stated repeatedly in the opinion in both cases that they would be and were undoubtedly included within the meaning of the words "officer" and "offices," as used in other constitutional provisions and statutes. While, of course, it may be dicta in those cases, it was expressly stated that Harrington might be an officer, and the place of "all time county health officer" might be included within the meaning of the phrase "public office" as used in our quo warranto statute. Section 5453 of the Code. The right to hold a similar office to that which Harrington held was determined by a quo warranto proceeding under the statute in the case of State ex rel. Smith v. Justice,
The Harrington Case, the Justice Case, and the case of State ex rel. Scholl v. Duncan, were all quo warranto proceedings to test and determine the rights of incumbents to discharge or perform the functions of the public office in question. While the question was not discussed at any length in any of those cases, it was of necessity decided in all that the place, position, or office from which the person sought to be ousted was a "public office," within the meaning of the quo warranto statute. Section 5453 of the Code. Otherwise neither the trial court nor this court would have had jurisdiction. There was no attempt in any one of the cases to confer jurisdiction on the court to test the right of the place, position, or office, except that it was a "public office" within the meaning of section 5453 of the Code. If not a public office within the meaning of that section of the Code, then the court never acquired jurisdiction of the subject-matter. So it was necessarily decided in all three of these cases that it was a "public office" within the meaning of the quo warranto statute, though not within the meaning of other statutes, viz., section 1467 of the Code.
The distinction between the meaning of the words and phrases in question, when applied to sections 1467 and 5453, was, however, pointed out in the Harrington Case, and followed in the Justice Case. In the Harrington Case,
"The authorities cited and relied upon by appellee are distinguishable from the case in hand for this reason, and also because many of them were dealing with offices, positions, places, or franchise rights which could be tested or inquired into in a proceeding by quo warranto; and not with the question of the eligibility of the person to fill the given place or to exercise the franchise rights. The words 'office' and 'officer,' when used in statutes of the one kind, have a different and wider and a more varied meaning than when used in those of the other. That is, the extent of the meaning of the words or phrases is not always the same, when used in different statutes relating to different subjects. For example, our statutes as to quo warranto proceedings are not exclusively against state, county, or municipal officers, but apply also to military officers and to officers of private corporations created by the authority of the state."
So it seems to us that it has been at least three times decided by this court that quo warranto will lie in a case like the one in question.
If quo warranto will not lie to test the right to discharge the duties, and to exercise the privileges, rights, powers, and functions conferred upon health officers, then any one could intrude into the office, place, or position, and there would be no remedy against his usurpation and intrusion.
The action of quo warranto has been brought to test the right to the office, place, or position of trustee of the university of Alabama. See Little v. Foster,
Reversed and remanded.
MAYFIELD, SAYRE, SOMERVILLE, GARDNER, and THOMAS, JJ., concur.
ANDERSON, C. J., and McCLELLAN, J., dissent.
Addendum
It appears that the ruling of the court below in sustaining the demurrer to the petition was predicated of the idea that quo warranto could not serve to institute inquiry into the rightfulness of Roberts' performance of the functions "of health *327 officer of Lauderdale county"; this for the reason that the position is not a "public office, civil or military," within the prescription of subdivision 1 of section 5453 of the Code, defining, among other instances, when this character of proceeding may be invoked to determine the right of one to hold or to exercise the functions and powers of such a trust. So far as presently pertinent, that section reads:
"An action [quo warranto] may be brought in the name of the state against the party offending, in the following cases: (1) When any person 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 this state. * * * "
The trial court held that the office of "health officer of Lauderdale county" was not a "public civil office" within the purview of the statute quoted.
In State v. Sanders,
Referring to the decisions relied upon by the majority of the court, neither the Scholl-Duncan Case nor the Justice Case took any account of the question now presented, nor was any consideration given it. Hence those deliverances cannot be regarded as any sort of authority in the premises.
Little v. Foster,
I would affirm the judgment.
ANDERSON, C. J., concurs in the foregoing.
Addendum
The minute entry quoted affirms the fact to be that the nonsuit was suffered by the state because of the adverse ruling on the respondent's demurrer to the original petition. The subsequent amendment of the petition — whereto the same demurrer was refiled and sustained — did not operate to negative the verity of the stated recital of fact that the nonsuit was taken *328
by the petitioner because of the adverse ruling on demurrer to the original petition. Berlin Mach. Works v. Ewart,
Assuming that a judgment of nonsuit may enter in this character of proceeding and that an appeal lies from this judgment, the action of the court below in sustaining the demurrer to the original petition is reviewable under our statute relating to nonsuits. Code, § 3017.