72 So. 330 (Ala. 1916), 1 Div. 913, Williams v. State

Docket Nº:1 Div. 913
Citation:72 So. 330, 197 Ala. 40
Opinion Judge:MAYFIELD, J.
Party Name:WILLIAMS, Probate Judge, v. STATE ex rel. SCHWARZ.
Attorney:Yerger & Foster, of Mobile, for appellant. Stevens, McCorvey & McLeod, of Mobile, for appellee.
Judge Panel:Sayre, Gardner, and Thomas, JJ., dissenting. ANDERSON, C.J., and McCLELLAN and SOMERVILLE, JJ., concur. THOMAS, J. (dissenting). McCLELLAN, MAYFIELD, and SOMERVILLE, JJ., concur.
Case Date:May 25, 1916
Court:Supreme Court of Alabama
 
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Page 330

72 So. 330 (Ala. 1916)

197 Ala. 40

WILLIAMS, Probate Judge,

v.

STATE ex rel. SCHWARZ.

1 Div. 913

Supreme Court of Alabama

May 25, 1916

On Rehearing, June 30, 1916

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Petition by the State, on the relation of Lazarus Schwarz, for a writ of prohibition against Price Williams, Judge of Probate, seeking to restrain him from examining into or finding the qualifications of the signers to the petition, and from taking any action under the petition. From a decree of prohibition, the Judge of Probate appeals. Affirmed.

Sayre, Gardner, and Thomas, JJ., dissenting.

Page 331

Yerger & Foster, of Mobile, for appellant.

Stevens, McCorvey & McLeod, of Mobile, for appellee.

MAYFIELD, J.

This appeal presents for decision the question whether or not section 14 of the statute creating a commission form of government for the city of Mobile (Acts 1911, p. 330), is violative of section 175 of the Constitution of 1901.

The statute creates the office of commissioner, and fixes the term of office at three years, "and until the successors are elected and qualified." Section 14 thereof then provides for the recall of any commissioner, during the term of office so fixed, by an election to be held for such purpose. The evident effect of this provision is to afford the opportunity and means of removing an incumbent during the term to which he has been elected, without any cause, except that the majority of the voters do not then desire that he shall continue to hold the office.

Section 175 of the Constitution, so far as here applicable, reads as follows:

"Mayors, intendants, and all other officers of incorporated cities and towns in this state may be removed from office for any of the causes specified in section 173 of the Constitution, by the circuit or other courts of like jurisdiction or a criminal court of the county in which such officers hold their office, under such regulations as may be prescribed by law; provided, that the right of trial by jury and appeal in such cases shall be secured."

Section 173 of the Constitution enumerates the causes for removal as follows:

"Willful neglect of duty, corruption in office, incompetency, of 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 for any offense involving moral turpitude while in office, or committed under the color thereof, or connected therewith, etc."

A majority of the court are of the opinion, and hold, that the office of commissioner, created by the statute, is within the protection of section 175 of the Constitution; and that, the statute fixing the term of office at three years, an incumbent cannot be removed from office during the term for which he is elected, by recall or otherwise, except by the mode and in the manner, and for the causes, fixed in the constitutional provisions above quoted. It therefore follows that section 14 of the statute in question is void and of no effect, and that appellee cannot be removed from office by recall, the mode here attempted to be invoked, as provided in that section of the statute.

The case made by this record is the same in legal effect as that made in Nolen's Case, 118 Ala. 154, 24 So. 251, and the two cases are not distinguishable. If Moore could not be removed from office except by impeachment, as provided by section 175 of the Constitution, then Schwarz cannot be removed except by the same mode and in the same manner. When Moore was elected to office, there was in force a statute authorizing the Governor to remove him and appoint a commissioner in his stead. Therefore the statutes fixing his term and providing for his election, and the one authorizing his removal, must all be construed together and as if constituting but one statute. So construing them, the court held that he could not be removed except by impeachment, because the Constitution provided the only mode of removal of such officers during the term for which they were elected. There can be no doubt that the statute in question fixes the term of office at three years and provides for the filling of the office by election and otherwise; and, when a person is elected or appointed to the office for that term, then the Constitution says that he may not he removed by the mode of recall. The Constitution and the statute are therefore clearly in conflict, and, of course, the Constitution controls. The inhibitions of the Constitution must be read into all statutes; and, when so read into the statute in question, they render inoperative the recall provisions of the statute.

The phrase, "until his successor is elected and qualified," has been often construed, and held not to add any additional time to the term fixed nor to make the term in the least indefinite or uncertain. If this recall provision were valid, then the Legislature could provide for the recall of all county and municipal officers, and all other officers, if the term of the office be not fixed by the Constitution. It was the evident purpose of our Constitution to prevent just such legislation as this. If it was not so intended, then the provision serves no purpose and is a dead letter.

This case and Nolen's Case are clearly distinguishable from Touart's Case, 173 Ala. 453, 56 So. 211. In that case, there was no term of office fixed or even named in the Constitution, the statutes, or the order appointing the incumbent. The decision was put solely on the ground that there was no term of office fixed, and consequently no removal was necessary; but in this case, and in Nolen's Case, the statute did fix a term of three years, and then attempted to provide a mode of removal different from that provided and guaranteed by section 175 of the Constitution. In the opinion in Touart's Case, it was attempted to distinguish that case from cases like the one at bar, and Nolen's Case. In that case it was said:

"When a person is appointed to an office the term of which is not fixed by law, he is then and ever after regarded as holding subject to the will of the appointing power; and this, upon the theory that the power of removal is incident to the power of appointment; and when he is removed he is not thereby deprived of any

vested right or function, because the very condition of his appointment was that he could be removed at the pleasure of the appointing power." 173 Ala. 464, 56 So. 211.

The court in that case expressly declined to decide whether the Governor could remove

Page 332

an incumbent who was appointed for a fixed period, but under a statute which authorized the Governor to remove with or without cause; and so declined, because no such case was presented. The statute now under discussion presents that very question, except that it provides that the incumbent shall be elected instead of appointed, and may be removed by a vote of his constituents, rather than by the Governor; and this difference cannot affect the result.

The case of Thomas v. Gunter, 170 Ala. 165, 54 So. 283, does not uphold the constitutionality of the act in question, nor preclude the respondent, Schwarz, from invoking section 175 of the Constitution. In the act involved in the Thomas Case, supra, the Legislature had the right to do what was done, that is, to change the term of office, except that such change could not be made to affect an incumbent whose term had not expired; but, as both Thomas and Brown assumed office after the term was shortened, they could not invoke sections 68 and 150 of the Constitution, which were intended to protect incumbents. There, the Legislature had the right to shorten the terms, just as it could have done here, and, if Schwarz had taken the office after the term was shortened, he could not complain. But the act in question does not deal with the term, as it is for a fixed period and remains the same regardless of how often the incumbent may be recalled. It merely provides for a removal of the incumbent before the expiration of the term--which violates section 175 of the Constitution as decided in the Nolen Case, supra. It is true that it was suggested in the opinion in the Thomas Case that sections 68, 150, and 174 were intended to apply only to incumbents, but the citation of 174 in connection with the other two sections was inapt, as that case did not involve a law removing an incumbent before the term expired. It merely shortened the term, which the Legislature had the right to do, and one who took the office after the term was so fixed could not complain of the action of the Legislature. Here, the Legislature did something which the Constitution forbids, as it provided for the removal of an incumbent during the term for which he was elected, and did not deal with the term.

Affirmed.

ANDERSON, C.J., and McCLELLAN and SOMERVILLE, JJ., concur.

THOMAS, J. (dissenting).

This appeal is taken by Price Williams from a judgment prohibiting him, as judge of probate of Mobile county, from finding the qualifications of the signers to the petition, filed under the provisions of the commission government act, seeking the recall of relator as a commissioner of the city of Mobile.

In 1911 that city adopted the commission form of government, pursuant to the act of 1911 (Gen.Acts, pp. 330-355), which act is still effective. At the first election held for commissioners, Lazarus Schwarz was elected for the long term expiring on the 30th day of September, 1914. Thereafter, on October 1, 1914, he was elected commissioner for a term alleged in his petition for prohibition not to expire until the 30th day of September, 1917.

The petition for recall, filed with said probate judge on October 20, 1915, purported to be signed by qualified voters of the city of Mobile, and by more than 25 per cent. of the votes cast at the last city...

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