49 Ala. 402 | Ala. | 1873
— The suit is in the nature of quo warranto, to try whether the right to the office of solicitor of Tuscaloosa County is in the relator or the appellee. The relator, Williams, was the solicitor; but some time between the 6th and 12th of May, 1869, he wrote an unconditional resignation, and gave it to Mr. Miller, the secretary of State, for transmission to the proper authority entitled to receive it. It came to the executive department, whence it was sent by mail, at the instance of the governor, to the judge of the circuit which includes Tuscaloosa County. The judge was absent from his home at the time, and when he returned, and before he had taken any action about it, he received also other letters from Williams, virtually withdrawing his resignation. Nevertheless, the judge appointed Mr. Fitts to the office, who qualified, and entered upon the duties thereof, and is still performing them. The question to be determined is, whether there was a resignation, and consequently a vacancy, which the judge of the circuit was authorized to fill.
The state Constitution gives the appointing power, in case of vacancy, to the judge of the circuit. In the case of Marbury v. Madison (1 Cranch, 137), it was held that when a commission for an officer, not holding his office at the will of the President, is by him signed and transmitted to the Secretary
The judgment is affirmed.