State v. Gunter

• Decision Date: 12 January 1911
• Citation: 170 Ala. 165,54 So. 283
• Parties: STATE EX REL. THOMAS v. GUNTER.
• Court: Alabama Supreme Court

54 So. 283

170 Ala. 165

STATE EX REL. THOMAS v. GUNTER.

Supreme Court of Alabama

January 12, 1911

Appeal from Circuit Court, Montgomery County; A. E. Gamble, Judge.

Quo warranto by the State of Alabama, on the relation of William H. Thomas, against Gaston Gunter, to test the right of the respondent to the office of the city court judge of the Montgomery city court. Judgment for respondent, and relator appeals. Affirmed.

N. D Denson, J. M. Chilton, Ray Rushton, Hill, Hill & Whiting, J Lee Holloway, H. S. Houghton, George M. Marks, W. E. Andrews D. F. Stakely, J. R. Thomas, M. A. Rabb, E. C. Page, and Ball & Samford, for appellant.

W. A. Gunter, for appellee.

ANDERSON J.

This action was instituted in the name of the state, upon the relation of W. H. Thomas, under chapter 128 of the Code of 1907, for the purpose of removing Gaston Gunter, as judge of the city court of Montgomery; the declaration containing a statement of the right and title of the said Thomas, and praying that Gunter should not only be removed, but that the relator Thomas, be declared the rightful holder of the office and entitled to same, and which is authorized by sections 5462, 5463, of the Code of 1907. Thomas claims the office, under and by virtue of the act of 1879, p. 418, providing for the selection of the judge of the city court, and which fixes the term of the judge so selected. This act, together with the previous ones bearing upon this subject, was construed in the case of Winter v. Sayre, 118 Ala. 1, 24 So. 89. We are not disposed to depart from the construction there given same, in so far as it may be applicable to the present case. The relator Gunter sets up title to the office, under a commission resulting from an election by the people, under the act (Session 1907, p. 517), and which reads as follows:

" An act to make the judge of the city court of Montgomery, and the associate judge of the city court of Montgomery, elective by the people.

"Section 1. Be it enacted by the Legislature of Alabama, that the judge of the city court of Montgomery, and the associate judge of the city court of Montgomery, shall be elected by the qualified voters of Montgomery county at the general election for state officers in the year 1910 and every six years thereafter, and shall hold their respective offices for a term of six years, from the 15th day of November, 1910, and until their successors are elected and qualified.

"Sec. 2. Be it further enacted, that the present judge and associate judge of said court shall hold their respective offices until November 15, 1910, and until their successors are elected and qualified.

"Sec. 3. That all laws and parts of laws, general, special or local, in conflict with the provisions of this act, be and the same are, hereby repealed." (Italics supplied.)

If, therefore, this is a valid law, Gunter is not usurping the office and has a good title thereto. The relator, however, assails the said act as being repugnant to certain sections of the Constitution of 1901, and we will take up these questions and dispose of them in the order of presentation, in the argument of the appellant's counsel. The act is unquestionably a local law, and, in order for it to have been legally enacted, it must appear that a notice, containing the substance of same, was given as required by section 106 of the Constitution, and if the notice was not given as required, it becomes our imperative duty to pronounce the said act void. The notice reads as follows: " Notice is hereby given, that a bill will be introduced in the next Legislature of Alabama, to make the judge and associate judge of the city court of Montgomery elective by the people, and fix the term of office of said judges. " (Italics supplied.) This section of the Constitution has been repeatedly considered by this court, and while there has been a constant and consistent effort to effectuate its mandatory requirement, yet it has been often held that the word "substance," as used therein, did not mean that every detail of the proposed law must be set forth, and it was sufficient, if the notice set forth the "essence, abstract or compendium of the act." City of Uniontown v. Glass, 145 Ala. 471, 39 So. 814; State v. Williams, 143 Ala. 501, 39 So. 276; Dudley v. Fitzpatrick, 143 Ala. 162, 39 So. 384; Ex parte Black, 144 Ala. 1, 40 So. 133; State ex rel. Hanna v. Tunstall, 145 Ala. 477, 40 So. 135 The notice in question sets out that the judges will be elected by the people, and that the act will fix the terms of said judges, and section 1 of the act does this and nothing more. If the fixing of the term to commence November 15, 1910, encroaches upon or interferes with any existing term, it is nevertheless the fixing of the term of the judges to be elected, and which was set out in the notice, and which is but the substance of the act. It is true that section 2 of the act deals only with the present judges, and makes their terms expire on November 15, 1910, thus doing expressly but what is done in section 1 by implication. If section 1 fixes the commencement of the terms of the judges to be elected thereunder on the 15th of November, 1910, it by necessary implication terminates the existing terms as of said date, and section 2 is superfluous. It does just what is done by section 1, and is of necessity of the substance of section 1, and section 1 is of the very essence of the notice given. It expressly fixes the term of the new judges, and if it curtails an existing term, it is due to the fixing of the term of those judges dealt with in the notice, and which is of the substance of the act. If section 2 was omitted from the act, the term, under section 1, of the new judges would commence on November 15th, and if the existing terms extended beyond that date they would be cut down without the aid of section 2. In dealing with the notice, we must

consider the status as existing at the time of the passage of the law. When the act was passed Judge Thomas had just previously been elected associate judge, and under the act of 1901 (Laws 1900-01, p. 823) his term would not expire until 1913. Judge Sayre was judge of the city court, and his term, under the act of 1879, as construed in the case of Winter v. Sayre, supra, had not expired, and while it was fixed at approximately six years, the act also provided that he should hold office until the close of the session of the Legislature, which had the authority to elect his successor. The sessions of the Legislature were changed by the last Constitution from biennial to quadrennial ones, and there was no regular session provided for which would be contemporaneous with the expiration of six years from the time Judge Sayre was elected, in 1903. So when the Legislature passed the act of 1907, there was no regular session for 1909, and it did not contemplate any extra session contemporaneous with or shortly after the expiration of six years from the date of his election in 1903, and it was the then evident opinion of the lawmakers, that he would hold on until the convening of the regular session of 1911, and they intended to terminate said terms under any conditions, upon the commencement of the term of the newly elected judges on November 15, 1910. On the other hand, if it should be true, that the Sayre term, had he held to the office, would terminate before the convening of the regular session of 1911, which was the one reasonably contemplated as the proper one to elect his successor, and that his term expired before the 15th of November, 1910, then section 2 would not be identical with section 1, as it might operate to slightly extend rather than curtail the term, but which we think unreasonable, in view of the conditions existing when the act of 1907 was passed; but if such was the effect, and section 2 was therefore not the same in meaning and effect as section 1 as to the existing terms, the notice would be sufficient, and the act would be saved by the opinion in the case of Williams v. State, supra. The result is, if section 2 cut down both terms, then it did no more than section 1, and if it slightly extended the term of the then city judge until the new judges took office, it was still of the substance of the notice, as declared in the Williams Case, supra. We therefore hold that the act was not repugnant to section 106 of the Constitution.

The act of 1907 is not a constructive or creative act, as the city court and the officers dealt with were already in existence and its sole purpose was to repeal or modify the acts of 1879 and 1901 as to the method of selecting the judges and fixing the term of office; yet the notice is silent as to the intention to repeal or modify any existing law, and the act merely contains a general repealing clause. The repeal or modification of the existing laws is, of necessity, of the substance of the act of 1907, and which, to my mind, is repugnant to section 107 of the Constitution for failing to set out the substance of so much of said acts of 1879 and 1901 as is repealed or altered by the act of 1907, and, as an original proposition, I would so hold, and which would be in conformity with the views expressed by the writer, and shared in by two other judges in the case of Tallassee v. Tooms, 157 Ala. 160, 47 So. 308. These views, however, did not become the opinion of the...