State v. Gardner

43 Ala. 234 | Ala. | 1869

PETERS, J.

The complaint in this case contains two counts. The first recites, that Samuel S. Gardner, on the 31st day of July, 1868, was duly installed into the office of judge of probate, in and for the county of Butler, in this State; that he acted as such in said county from that day to the 3d day of November, 1868, when he left the county and has not since resided within the limits thereof, nor held any courts therein, nor performed any official acts whatever within said county, but has continually since resided, and still resides, in the county of Montgomery, in said State, and has failed and neglected, and still fails and neglects, to discharge, within the limits of said county of Butler, the duties of the office of probate judge thereof, by means of which, said office has been vacated, and is now vacated; and yet, notwithstanding, said Gardner now unlawfully claims to be the judge of probate of said county of Butler, and unlawfully holds and exercises the duties of said office without the limits thereof ; and that, since said judge of probate has so left said county of Butler, and whilst residing in said county of Montgomery, he has granted and issued marriage licenses, and performed other acts as such judge of probate, which are particularly set out in said complaint. The second count is mainly a repetition of the first, except as to the gravamen of the charge, which is, that the accused was elected or appointed to the office of enrolling clerk of the house of representatives of the legislature of Alabama, (a public and lucrative office in this State,) then in session; which office said accused had accepted, and had entered upon the exercises and duties thereof, and exercised the same until the adjournment of said legislature sine die. That the duties of said office of enrolling clerk are incompatible with the duties of the office of judge of probate, and said offices can not be held by one and the same person, at one and the same time, and that the acceptance of the said office of enrolling clerk, ipso facto vacated the office of judge of probate for said county of Butler: wherefore, the plaintiffs claim a judgment of ouster against said accused, and a judgment declaring said office to be vacant. The writ is dated on the 5th day of January, 1869. There was a demurrer to both counts of this complaint. That to the first count was overruled, but that to the second count was sustained. Upon. this, the plaintiffs below, who are appellants in this court, excepted to the ruling of the court upon the demurrer to the second count, and tendered their bill of exceptions to reverse the same, which was signed, sealed and dated by the presiding judge, as required by law. Thereupon they took a non-suit and appealed to this court, and here assign for error the ruling of the court below on the demurrer to the second count of the complaint.

The view which we take of this ease, does not require a very rigid examination of the pleadings in the court below. We think that the plaintiffs wholly mistook their remedy, and that a quo warranto does not lie upon the facts stated in the complaint in this case. A quo warranto only lies against a person claiming to be probate judge, who was never duly and legally inducted into the office, — a person who was incompetent to hold the office from the first. If the person claiming to hold the office was ineligible at first, and was lawfully inducted into office, then he can not be ousted in this way. The case of The State, ex rel., v. Porter, was different from this. Here Judge Gardner was legally elected probate judge of Butler county, and was eligible to be such judge when elected, and was duly inducted into his office as such, within the time and manner prescribed by law. But Judge Porter was not. He was incompetent to hold the office at the time of his election.—The State, ex rel., v. Porter, 1 Ala. 688. When a judge is once inducted into office, and is competent to hold it when elected, he can only be ousted or removed in the manner prescribed by the constitution of the State. If he has been guilty of an impeachable offense, he must be impeached before the senate. If he has been guilty of an offense “for any willful neglect of duty, or any other reasonable cause which shall not be a sufficient ground of impeachment,” he must be removed by the governor, “on the address of two-thirds of each house of the general assembly.” Const, of Ala., art. 4, § 23; ib. art. 6, §§ 1, 23. These articles of the constitution clearly vest in certain departments of the government the jurisdiction to try impeachments, and to try applications for removal of judges from office in this State. This makes the jurisdiction exclusive, and no other tribunal can exercise the powers thus conferred, except those departments of the government mentioned in the constitution itself. Hxpressio unius est exelusio alteriusr, is a maxim acknowledged by this court to be a rule of law as well as of logic. This forbids a different construction of the constitution than that here insisted on.—Broom’s Max. 505; The State, ex rel. v. Porter, 1 Ala. R. 688, 698; Hamilton v. Williams, 26 Ala. 527, 531; Haley v. Clark, 26 Ala. 439; Const. of Ala., art. 3, §§ 1, 2. Although it may not be necessary to discuss the question raised upon the appointment of Judge Gardner as enrolling clerk of the house of representatives, yet it may be said, that we do not deem it an office, in the technical sense of that term. Any others of the persons employed by the legislature, or authorized by them to be employed about the capitol, such as watchmen, fire-builders, or sweepers of the halls, might just as well be styled officers as such a clerk. It is but an employment, not an office. “All the State officers may be impeached for any misdemeanor in office.”—Const. of Ala., art. 4, § 23. It would be ridiculous to talk of impeaching a watchman, or a fire-builder, as State officers. The remedy against such persons is to remove them at once, by the house of the general assembly, giving the appointment. These persons can not be removed by the courts upon quo warranto. The same may be said of the enrolling clerk, as such officers are controlled and discharged by the general assembly, or by the house appointing them.

There is, then, no ■ error in the judgment of the circuit court, and it is affirmed; the quo warranto is dismissed, and the said appellant, Sewell, and his securities on his appeal bond, are taxed with the costs in this court and in the court below.