State ex rel. Gallion v. Hammonds

208 So. 2d 81, 281 Ala. 701, 1968 Ala. LEXIS 1271

• Court: Supreme Court of Alabama
• Decided: January 25, 1968
• Docket: 6 Div. 509
• Status: Published

Opinions

PER CURIAM.

Impeachment proceedings against the defendant Hammonds, as Deputy District Attorney of the Bessemer Division of the Tenth Judicial Circuit, Jefferson County, were initiated by a written report of the Grand Jury of the Bessemer Division of Jefferson County and the subsequent filing of information by the Attorney General, charging that the defendant has been guilty of impeachable conduct while in office.

The defendant filed a plea to the jurisdiction contending that this court does not have original jurisdiction to entertain the impeachment proceedings against him because he “is not a Solicitor, District Attorney, or other officer against whom impeachment proceedings may be instituted originally in this Court under the provisions therefor of the Constitution of Alabama of 1901.”

We have determined that this plea must be sustained and that the impeachment proceedings should have been filed in the Circuit Court of Jefferson County.

■ The Constitution, in Sec. 174, names the officers who may be brought before the Supreme Court for trial in impeachment proceedings. The section provides:

“The chancellors, judges of the circuit courts, judges of the probate courts, and judges of other courts from which an appeal may be taken directly to the supreme court, and solicitors and sheriffs, may be removed from office for any of the causes specified in the preceding section or elsewhere in this constitution, by the supreme court, under such regulations as may be prescribed by law. The legislature may provide for the impeachment or removal of other officers than those named in this article.”

One of the basic contentions of the Attorney General is that Sec. 174 covers the office held by the defendant because Sec. 174 uses the word “solicitors” where the Constitution of 1875 used the term “Solicitors of the Circuits” and that this shows an intention to cover more than circuit solicitors.

The proceedings of the constitutional convention of 1901 show clearly that there was a contest as to whether there would be circuit solicitors or county solicitors and a compromise was effected whereby circuit solicitors were retained but the Legislature was given the authority to also provide for the election of a county solicitor who would have the same authority as a circuit solicitor. See Sec. 167, Constitution of 1901, which provides:

“A solicitor for each judicial circuit or other territorial subdivision prescribed by the legislature, shall be elected by the qualified electors of those counties in such circuit or other territorial subdivision in which such solicitor prosecutes criminal cases, and such solicitor shall be learned in the law, and shall at the time of his election and during his continuance in office, reside in a county (in the circuit) in which he prosecutes criminal cases, or other territorial subdivision for which he is elected, and his term of office shall be be for four years, and he shall receive no other compensation than a salary, to be prescribed by law, which shall not be increased during the term for which he was elected; provided, that this article shall not operate to abridge the term of any solicitor now in office; and, provided further, that the solicitors elected in the year nineteen hundred and four shall hold office for six years, and until their successors are elected and qualified; and, provided further, that the legislature may provide by law for the appointment by the governor or the election by the qualified electors of a county for a solicitor for any county.”

It is apparent that the word “solicitors” in Sec. 174 of the Constitution means either a circuit solicitor or a county solicitor elected by the people and with authority equal to that of a circuit solicitor.

We agree with the contention of the State that under Sec. 167 of the Constitution, the Legislature may create a solicitor for a territorial subdivision other than a county and that the Legislature could have provided for a circuit solicitor for what is commonly known as the Bessemer Cutoff, a territorial subdivision of Jefferson County.

But the Legislature created a more or less hybrid office when it created the office now held by the. defendant. We quote the first sentence of Tit. 13, § 252, Code 1940, which created the office:

“At the general election held on the first Tuesday after the first Monday in November 1942 arid every four years thereafter, there shall be elected by the qualified voters of the Bessemer division of Jefferson county, a deputy circuit solicitor of the tenth judicial circuit, who shall hold office for the term of four years, and until his successor is elected and qualified, who shall at the time of his election and during his term of office reside within the territory from which he is elected, and who shall in the absence of the circuit solicitor discharge the same duties and exercise the same authority within the territory from which he is elected as if he were solicitor. * * * ” (Emphasis supplied.)

It is evident that the statute intended that the “deputy circuit solicitor” of the Bessemer Division should have the same duties, authority and powers as the circuit solicitor of Jefferson County but he could discharge those duties only “in the absence of the circuit solicitor.” Thus, we have an officer, elected by the people, who is clothed with all the powers of the circuit solicitor but all of these powers are nullified whenever the circuit solicitor of Jefferson County is present. We cannot say that the deputy circuit solicitor of Jefferson County can be a “solicitor” as contemplated by Sec. 174 of the Constitution one day or a part of a day and then be totally superseded as to powers, duty and authority by the presence of the circuit solicitor of Jefferson County.

Some argument was made in brief and oral argument on the point as to whether the office of deputy solicitor of Jefferson County for the Bessemer Division is a state or county office. We point out that this question is immaterial because of Tit. 41, § 178, Code 1940, which reads:

“The following officers may be impeached and removed from office, to-wit: Judges of circuit and probate courts, solicitors of the circuits, judges of the inferior courts from which an appeal may be taken direct to the supreme court; sheriffs, clerks of the circuit courts, tax collectors, tax assessors, county treasurers, coroners, justices of the peace, notaries public, constables, and all other state officers not named in section 173 of the constitution, and all other county officers, and mayors and intendents of incorporated cities and towns in this state, for the following causes, to-wit: Wilful neglect of duty, corruption in office, incompetency or intemperance in the use of intoxicating liquors or narcotics to such an extent in view of the dignity of the office and importance of its duties as unfits the officer for the discharge of such duties, or any offense involving moral turpitude while in office, or committed under color thereof, or connected therewith.”

See also Sec. 17S, Constitution 1901, and Art. 2 of Tit. 41, §§ 178-187, Code 1940.

The holder of office of deputy solicitor of Jefferson County for the Bessemer Division is not named in § 178, supra, but that section does cover "all other state officers not named in section 173 of the Constitution, and all other county officers (Emphasis supplied.)

Thus, it is apparent that under Tit. 41, § 178, Code 1940, the correct place to' file impeachment proceedings against the defendant would be in the circuit court of the county in which he resides. It follows that defendant’s plea to the jurisdiction of the Supreme Court in this matter is due to be, and is, sustained and that the impeachment proceedings against him in this court are abated and dismissed.

LAWSON, SIMPSON, MERRILL and COLEMAN, JJ., concur. LIVINGSTON, C. J., and GOODWYN and HARWOOD, JJ., dissent.