Nolen v. State

• Citation: 24 So. 251,118 Ala. 154
• Parties: NOLEN v. STATE EX REL. MOORE.
• Decision Date: 08 November 1898
• Court: Supreme Court of Alabama

24 So. 251

118 Ala. 154

NOLEN v. STATE EX REL. MOORE.

Supreme Court of Alabama

November 8, 1898

Appeal from circuit court, Coosa county; J. M. Carmichael, Judge.

Quo warranto by the state, on the relation of S. L. Moore against J. M. Nolen. From a judgment in favor of relator respondent appeals. Affirmed.

The information or complaint was as follows: "The plaintiffs, the state of Alabama and Samuel L. Moore, aver That the said Samuel L. Moore was at the general election held in August, 1896, duly and legally elected tax assessor for the county of Coosa for the term of four years, and on the 14th day of August, 1896, the said Moore gave bond as such tax assessor, and duly qualified, and entered upon the discharge of the duties of said office (and ever since said time has been, and is now, the lawful tax assessor for the county of Coosa, and is now engaged in the discharge of the duties of such office), and is the only person authorized by law to assess the state and county taxes in the county of Coosa. That on, to wit, the 30th day of July, 1897, Joseph F Johnston wrote and sent to plaintiff the following official letter: 'S. L. Moore, Esq., Tax Assessor of Coosa Co. Rockford, Ala.-Sir: It appearing to me that you have been guilty of neglect of duty in the office of tax assessor of Coosa county, under the authority imposed upon me by law you are hereby suspended from the office of tax assessor of Coosa Co. Respectfully, Jos. F. Johnston, Governor,'-thereby suspending your plaintiff S. L. Moore from the office of tax assessor of Coosa county." That on the 25th day of August, 1897, one J. M. Nolen, claiming to act as tax commissioner under and by virtue of an appointment as such tax commissioner by Joseph F. Johnston, governor of the state of Alabama, and claiming by virtue of such appointment to be clothed with the authority and charged with the duties imposed by law upon the tax assessor of Coosa county, has usurped, and is now attempting to exercise, the duties and power of the tax assessor of Coosa county, and is now engaged in assessing the state and county taxes of Coosa county. And plaintiffs aver that the said Joseph F. Johnston, governor as aforesaid, was without any legal power and authority to appoint the said J. M. Nolen as tax commissioner of Coosa county; that there is no such office authorized by the constitution and laws of the state of Alabama; and that said appointment is and was void, and of no effect, and conferred on the said Nolen no lawful right to assess the state and county taxes of the county of Coosa, or to do or perform any act devolved by law upon the tax assessor of Coosa county. "Whereupon plaintiffs pray judgment that the said J. M. Nolen is guilty of usurping the functions and duties of the tax assessor of Coosa county, and adjudging that he be excluded from the exercise of any of the duties in relation to the assessment of the state and county taxes for the county of Coosa which are by law devolved upon the tax assessor of Coosa county, and that plaintiffs recover of the said Nolen the costs in this behalf expended." The plaintiff demurred to the information upon the following grounds: "First. The information or complaint shows that the plaintiff, or informer, is still in the office of tax assessor of Coosa county, and is still exercising the functions and discharging the duties of said office. Second. The complaint or information does not show that the defendant is in possession of said office. Third. The complaint or information shows that defendant is not in possession of the said office, or exercising the same. Fourth. The complaint or information does not show that the informant has been or is being interfered with in the exercise of said office, or in the discharge of the duties of the same. Fifth. The complaint or information does not show that the defendant has usurped, intruded into, or unlawfully holds or exercises, the said office of tax assessor of Coosa county. Sixth. The complaint or information does not allege or show that the informant, the said S. L. Moore, has ever been removed from the said office of tax assessor. Seventh. If it be true that the act of the legislature, by force of which the said defendant was appointed tax commissioner, is unconstitutional, this proceeding by quo warranto is not the proper remedy for displacing him. Eighth. The information does not sufficiently show that the informant had or has legal qualifications for exercising the said office of tax assessor. Ninth. The information is vague, uncertain, and contradictory. Tenth. The remedy by quo warranto sought here cannot be invoked in this case. Eleventh. Quo warranto is not the proper remedy to test the constitutionality of an act of the legislature creating an office." This demurrer was overruled, and thereupon the respondent filed the following answer: "Comes the defendant, or respondent, and receiving and reserving all exceptions and objections with ruling of the court in overruling demurrers to plea and answer, says: That on and prior to the 30th day of August, 1897, the plaintiff, the said S. L. Moore...