State ex rel. Knox v. Dillard

72 So. 56, 196 Ala. 539, 1916 Ala. LEXIS 456

• Court: Supreme Court of Alabama
• Decided: April 21, 1916
• Status: Published

Opinions

MAYFIELD, J.

Appellant,, as. relator, filed a statutory complaint or information in the nature of quo warranto against appellees, as authorized by chapter 128, §§ 5450-5472, of the Code, alleging that appellees were usurpers of the offices of members of the court of county' commissioners of Covington county, and that the relator, a member of the board of revenue of Covington county, was entitled to discharge the duties of the office alleged to be usurped by one or the other of the appellees. The trial court sustained a demurrer to appellant’s amended complaint or information, and the appellant declined to plead further, Rnd suffered judgment of dismissal, and from that judgment prosecutes this appeal.

•It is conceded that the correctness or incorrectness of the rulings complained of depends upon • the proper construction and the validity or invalidity of certain provisions or sections of a local statute passed by the Legislature of Alabama at the late (1915) session (Local Acts, 1915, pp. 98, 103). This act and the notice of its proposed passage as provided for by section 106 of the Constitution are set out in extenso as exhibits to the complaint or information. The act, as its title indicates, undertook to create a court of county commissioners for Covington county in lieu of a board of revenue for the same county, and to provide for officers to discharge the duties of the court so created, and for the qualifications of such officers, and for their election or selection. As the court created was in lieu of the board of revenue, which was abolished, and as the terms of the members of the board abolished had not expired, the act undertook to provide that the members of the board who should comply with certain provisions of the act should hold office as members of the court created until their successors were elected and qualified under the provisions of the act creating the court. Appellant was a member of the board of revenue, and qualified and held the office under the statute in question until appellees were elected and qualified as provided in the statute, when the latter assumed the duties of the office,-and thereafter discharged the duties previously discharged by appellant.

It should be-observed that--neither appellant nor either of appellees professes to be‘entitled to hold, office for the full term fixed by the statute, but that each professes and claims to be entitled to hold office until the-beginning of the first full term fixed in the statute, which is until their successors are elected and qualified at the general election to be held' in 1916. In fact, the term to which the claim of office is made is the interim from a -special election held 60 days after the passage of the act, to-wit, October 9, 1915, to the general election to be held in 1916, and until their successors are .qualified. It is contended by the appellant that the act in question or part thereof is void, which provides that at the general election to be held in 1916 the members of the court or some of them shall be elected, not by the votes of the entire' county, but by the votes of the respective districts into which the act in question divides the county. It is therefore apparent that a sufficient answer to this contention is that none of the parties claim any rights under this provision of the act, and that none can claim any such right until an election is held under this provision. If we were to decide this question, the case to this extent would be moot.

It is next insisted that the provision of the act which authorized a special election for the selection of the persons to fill out the unexpired terms until the general election in 1916, at which election the officers should be elected for full terms, was void, because such provision was not authorized by the notice of the intention to pass the bill, as is provided • in ■ section 106 of the Constitution. The provisions of the act which relate to the filling of the offices during the interim from the passage of the. act until the general election in 1916 are as follows: “Sec. 17. The officers of the board of revenue for said county, who may be in office at the time this act "goes into effect shall constitute such respective officers of this said court, if qualified under this act upon filing oath and bond as provided herein within ten days from the approval of this act as a condition precedent, and shall hold office, in such event, until their successors are elected and qualified as provided for in this act.

“Sec. 18. That on the first Saturday after the expiration of sixty days from the approval of this act, an election shall be held in Covington county, to be held and provided for in all respects and carried out as general elections, for the purpose of electing officers for said court, whose terms of office shall begin on the election and qualification under this act, and until their successors are elected and qualified at the general election‘in 1916; and county officers for said county, shall perform the same duties, and in conformity to the law, as to such special election, its details and the results thereof, as is required under the general laws of this state as to elections.”'

The record shows that relator was one of the members of the board of revenue, and that he held office under section 17 of the act, from the passage of the act in question until the special election provided for under section 18 of the act, at which time the appellees were elected to fill out the remainder of the interim. Why two modes should thus be provided for selecting the persons to fill out the short interim of a little more than a year is a question of propriety addressed to the Legislature, and not to the court. It is a question of policy, and not of power or right. We are unable to see why such a provision was not authorized to be placed in the bill proposed to be passed, by the notice of intention, published as required by section 106 of' the Constitution. The provisions are certainly germane and cognate to the main purpose of the proposed bill; and some such provision or provisions were necessary after the board of revenue was abolished, of course, because the act terminated the right of the incumbents, as members or officers of the abolished board, to hold the offices in question. The court of commissioners created by the act was in lieu of the board of revenue abolished, and all the powers and duties of the- board' were conferred on the court. The first regular term of office of the members and officers of the court created was not to begin until after the election to be held in the future — more than a year after the board was abolished — and it was not only proper, but necessary, for the Legislature to provide some mode for selecting the persons to fill’the offices during the interim; and this they did by sections 17 and 18 of the act, above set out. The mode and manner of selecting these persons was peculiarly within the power and discretion of the Legislature. There is no constitutional prohibition or inhibition as to any particular mode. It could be done equally as well by the act naming certain persons to fill the offices ad interim, or authorizing the Governor or some other authority to appoint such, or providing for an election to select such persons. The Legislature in this case saw fit to adopt two of'these methods, instead of one, for selecting the persons to fill out the terms of office during this interim, thus attempting the constitutional method prescribed for filling vacancies in certain judicial offices. Whether the Legislature deemed the two modes necessary, to comply with these constitutional provisions, or whether some other reasons dictated the provisions, it is unnecessary for us to inquire, for the reason that the Legislature was well within the scope of its power in so framing the act.

If the statute were a general one. we apprehend no question would be raised as to the validity of such provisions: for like provisions are well within the powers of the Legislature in creating inferior and statutory courts, in abolishing the same, in filling the offices provided for such courts, in nroviding for the filling of vacancies to occur, or in providing that other officers shall be ex officio the officers of the courts so created. The authorities to this effect are too numerous to require citation. In fact, the Constitution contains provisions expressly authorizing the exercise of some of these powers, and the others are held not to be prohibited.

It is contended in this case, however, that the statute in question is a local one, and as such is prohibited, except after notice and publication thereof as required by section 106 of the Constitution. This section provides as follows: “No special, private, or local law shall be passed on any subject not enumerated in section 104 of this Constitution, except in reference to fixing the time of holding courts, unless notice of the intention to apply therefor shall have been published, without cost to the state, in the county or counties where the matter or thing to bé affected may be situated, which notice shall state the substance of the proposed law and be published at least once a week for four consecutive weeks in some newspaper .published in such county or counties, or if there is no newspaper published therein, then by posting the said notice for four consecutive weeks at five different places in the county or counties prior to the introduction of the bill; and proof by affidavit that said notice has been given shall be exhibited to each house of the Legislature, and said proof spread upon the journal. The courts shall pronounce void every special, private, or local law which the journals do not affirmatively show was passed in accordance with the provisions of this section.”

The notice in this case was as follows: “A bill will be introduced in the Legislature of Alabama at its next regular session convening in January, 1915, and enacted into a law for Covington county, Ala., creating and establishing a court of record for said county, styled the court of county commissioners, to be composed of one president, four associate members, and one clerk, to be elected by the qualified voters of said county at the general elections for 1916, and every four years thereafter, and whose terms of office shall be for the time and period as provided by' section 1464 of the Code of Alabama, vesting said court, and the officers thereof respectively, with all the powers, duties, jurisdiction, practice, and procedure as is now or may hereafter be conferred upon courts of county commissioners and boards of revenue of this state, and also that of the board of revenue of Covington county, and transferring all the matters, causes, records, and papers of said board of revenue of Covington county into said court of county commissioners, and abolishing said board of revenue for said county, requiring bond of the officers of said court, and prescribing their qualifications and compensations, and to further extend and otherwise enlarge, define, and prescribe the powers, jurisdiction, and duties of said court and the officers thereof, and to constitute the members of the present board of revenue of said county the. officers of said court until their successors are elected and qualified as provided for in said bill”

This notice we deem to be ample to authorize any provision in the act in question which is here complained of, and which' can here be decided. It is probably the fullest and most specific of its kind which we have examined, and contains provisions possibly not necessary to support the act now under consideration. The provisions of the act are not different from or in conflict with any of the recitals contained in the'notice. While the notice did recite that the members of the board of revenue, one of whom was appellant, should hold office with certain qualifications, it did not recite any specific term or time for which they should hold. It recited that they should hold only until their successors were elected and qualified, as provided for in the act' proposed to be passed. The act did so provide, as well as how and when their successors should be elected; and they were' so elected, and appellant served his full time as so provided, while appellees are now serving the remainder of the interim as is authorized by the act. It therefore appears that appellees are not usurpers, but are by law now authorized and designated as the persons to discharge the duties and exercise the franchises of the office in question, until after the general election to'be held in November of the ■ current year, and úntil their successors are elected and' qualified.

Counsel for appellant cite many cases and decisions of this court construing section 106 of the Constitution, and there are many more. All of these we- have examined, but none of these cases hold that the provisions of the statute under consideration would be void on account of section 106, or of any other provision of the Constitution; and there has been placed by the court no construction on the Constitution which would have the effect of rendering these provisions of the statute void. It is useless- to cite or review all the cases, because each decision is, of course, referable to the particular facts of the particular case; and in all the cases in which the act was declared void the provisions of the statute or the recitals of the notice or the publication thereof was entirely different from the case made on this appeal. What was said in the case of Christian v. State, 171 Ala. 52, 54, 54 South. 1001, as to the validity of another local act passed for the same county (Covington), as to the petition of another court of such county, and as to filling vacancies in the offices of- such court, is both apt and conclusive in this case. It is there said: “The Constitution does not proceed upon the theory that all the details of every proposed law should be worked out in advance and without the aid of legislative wisdom. It requires only that the local public shall be advised of the substance of the proposed law, of its characteristic and essential provisions, and of its most important features. And this court has so held in a number of cases. Its language has been that the Constitution is complied with if the notice contain a fair compendium or abstract of the act in all its essential features. It has been said that the Constitution does not interfere with the right of the Legislature to shape up and work out the details of local legislation.—State v. Williams, 143 Ala. 501, 39 South. 276; Hanna v. Tunstall, 145 Ala. 477, 40 South. 135.”

In the case of State, ex rel. Hanna v. Tunstall, 145 Ala. 477, 40 South. 135, presenting a similar question of conflict between the provisions of a statute and the terms of the notice anticipating it, as to the mode of selecting the officers and filling the places during the interim, it is said: “Under the law as it stood, there was a solicitor of the city court of Anniston, elected by the Legislature, whose term would not expire until February 25, 1905. Notice was given that application would be made to the Legislature to amend that law in the following particulars: (1) So as to provide that this solicitor, at the expiration of the term, should'be ‘appointed by the governor or elected by the people.’ This was a notice to the people that the Legislature was to be asked to decide as to these two methods. No one could be deceived .by it, and, if any one had any preference as to whether either one or the other of these methods should be adopted, they should have made known their wishes 'to their representatives or to the Legislature. The Legislature adopted the elective plan, but, as the time for the regular election had passed, provided for an appointment to fill the office until the next general election of solicitors, which is in exact accordance with the general law.”

It follows that appellees are not usurpers of any offices or franchises, but that they have been selected as officers ad interim, as provided by law; and the judgment of the lower court will be affirmed.

Affirmed.

Anderson, C. J., and Somerville and Thomas, JJ., concur.