Touart v. State
| Decision Date | 29 June 1911 |
| Parties | TOUART v. STATE EX REL. CALLAGHAN. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.
Quo warranto by the State, on the relation of D. J. Callaghan against Stephen Touart. Judgment for relator, and defendant appeals. Affirmed.
Boyles & Cohn and Tisdale J. Touart, for appellant.
Roach & Chamberlain, Fitts, Leigh & Rickarby, and G. L. & H. T Smith, for appellee.
This is a quo warranto proceeding, or one in the nature thereof, under chapter 128 of the Code of 1907. It is instituted to determine the right to exercise the duties and receive the emoluments of the office of county tax commissioner for Mobile county. The proceeding was instituted in the name of the state, on the relation of D. J. Callaghan, who claims to be entitled to exercise the duties and discharge the functions, and to receive the emoluments of said office; and was brought against Stephen Touart, appellant here, who was at that time, and had been, for a number of years, discharging the duties and receiving the emoluments of the office, under and by virtue of a commission, issued to him by the Governor of the state of Alabama on December 29, 1908, for the term commencing at the expiration of the term of his predecessor in office, H. M. Friend, which was on the first Monday in January, 1909.
The petition of the relator alleged that he was appointed to the office alleged to be usurped by the respondent, on the 16th of March, 1911, and that he gave bond, qualified, and was duly commissioned by the Governor of Alabama to discharge the duties of the office; that thereafter he made demand upon the respondent to be admitted to the office to which he had been appointed, which demand was refused and denied him by the respondent; that subsequently thereto, to wit, on April 12, 1911, the Governor of Alabama removed the respondent, Touart, and on April 26, 1911, the relator, Callaghan, was again appointed and recommissioned to the office of county tax commissioner for Mobile county, whereupon he again demanded the office of the respondent, and his demand was by the respondent again refused and denied. The petition then prayed that the respondent be declared not entitled to discharge the duties of said office, and that he be removed therefrom, and that the relator be declared entitled and admitted thereto.
The respondent demurred to this petition, assigning numerous grounds, among which may be mentioned the following: That the relator was not qualified to discharge the duties of the office; that the petition failed to set forth any facts showing or tending to show that the respondent was not qualified, or that he was not entitled to discharge the duties of the office, and that it wholly failed to show that the respondent was holding the office unlawfully, or that he was usurping the functions of such office; that it failed to show that the term to which the respondent was appointed or elected had expired, or in what manner or by what means the respondent had been rendered unfit or ineligible to discharge the duties of the office; that it failed to show that there was a vacancy in the office when the relator was appointed, and failed to show the beginning, duration, or ending of the term or terms to which the relator or respondent was respectively appointed or elected; that the petition showed that the attempted removal of the respondent by the Governor of Alabama was void and of no effect, for the reason that section 2238 of the Code of Alabama, under and by virtue of which the Governor acted in attempting to remove the respondent, was in violation of section 175 of the Constitution of the state of Alabama of 1901, which prescribes a limitation upon the grounds for and modes of removing county officers, and limits the same to impeachment proceedings in the manner provided by law; that the petition also showed that the removal of the respondent was void. These demurrers being overruled, the respondent answered the petition or complaint by setting forth the facts as to the appointment of the respondent to the office, that his term had not expired at the time the relator was appointed, and claiming that the respondent was rightfully entitled to the office. To this answer the relator demurred, the demurrer being sustained by the court. The respondent declined to plead further, whereupon the court rendered judgment ousting the respondent from the office and awarding it to the relator; and from that judgment this appeal is prosecuted.
There are six propositions which the appellant insists upon on this appeal, and which, he says, render the decree of the lower court erroneous and prejudicial to the rights of the appellant. The first of these is that section 2238 of the Code, authorizing the Governor to remove tax commissioners, is unconstitutional and void; the second is that if the statute be valid, the tax commissioner is entitled to notice and a hearing before he is removed; and the third and fourth ask whether the term of the appellant is for a definite time, and, if not, for what term he holds; the fifth questions the validity of the appointment of relator, on the ground that it was made prior to the expiration of the term of his predecessor; and the sixth, whether the court can award the office to the relator without proof that he is entitled thereto--that is, upon the mere petition and answer.
The first insistence is that section 2238 of the Code is unconstitutional and void because in violation of section 175 of the Constitution of 1901, providing that certain officers mentioned, and "all other county officers," may be removed from office for any causes specified in section 173 of the Constitution, under such regulations as may be prescribed by law, provided the rights of trial by jury, and of appeal, in such cases, shall be preserved.
Section 2238 of the Code, which is claimed to be unconstitutional, provides "that any county tax commissioner may be removed by the Governor at his discretion, or by the State Tax Commission, with the approval of the Governor, for any inefficiency or malfeasance in office; and of the sufficiency of the ground or cause of removal, the Governor shall be the sole judge." It thus appears that this section of the Code attempts to confer upon the Governor power to remove county tax commissioners at his discretion, and without notice or trial. We think there can be no doubt that this intention is clearly expressed in this section of the Code, whether construed alone or as a part of the original act of the Legislature, of which it formed a part, or of that chapter and article of the Code in which it now finds its place.
It was ruled by this court in the case of Nolen v. State, 118 Ala. 154, 24 So. 251, that a statute which authorized the Governor to suspend tax assessors and to appoint commissioners to perform the duties of the former, was unconstitutional and void, because in violation of section 3 of article 7 of the Constitution of 1875, which, for all purposes necessary to a decision on this appeal, is identical with section 175 of the present Constitution.
In the case of Hawkins v. Roberts, 122 Ala. 130, 27 So. 327, the doctrine announced in Nolen's Case was reaffirmed; but it was held in that case that neither the provision of the Constitution under consideration, nor the principles announced in Nolen's Case, would prevent the Legislature from abolishing certain offices which were not constitutional and which, therefore, it had the right to create and to abolish; that the Legislature having the right to abolish the office which it created, this abolition necessarily carried with it the term of the incumbent officer. There being no office, of course there could be no term of office, and there being no term of office, the incumbent at the time of the abolition of the office of necessity could not continue, or be continued, in office.
In other words, that case and a number of others of this state have decided that the Legislature may abolish an office which it is authorized to create, and that the abolition of such office terminates the right of the incumbent to exercise the rights and duties thereof.
It therefore follows that if a county tax commissioner is a county officer, and he has been appointed or elected to fill a definite and fixed term, his removal from office during the term to which he was appointed or elected--except for the causes enumerated in section 173 of the Constitution, and by the method of impeachment--is inhibited by the Constitution; and that, in the impeachment proceeding provided, he has the rights of jury trial, and appeal, as guaranteed by section 175 of the Constitution.
We feel no hesitancy in deciding that a county tax commissioner is a county officer within the meaning of section 175 of the Constitution. See Words & Phrases, vol. 2, under subject, "County Officers."
It is clear from the decisions in the Nolen and Roberts Cases that this section of the Constitution is not limited to county officers created or even mentioned in the Constitution; nor do we think that the section is limited to those county officers that are elected by vote of the people or by the Legislature, but that it extends to those who are appointed, as well.
It is, however, likewise clear and certain that the provision is intended to protect county officers from removal, except in the manner authorized, during the term of office to which they are appointed or elected. It was not intended to apply to those officers, though county officers, the terms of whose incumbency is to be fixed or determined by the appointing power.
If the appointing power is given the right to fix the term during which the appointee is to hold...
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