Alexander v. State ex rel. Carver

Decision Date07 February 1963
Docket Number6 Div. 708
Citation150 So.2d 204,274 Ala. 441
PartiesThomas McKinley ALEXANDER v. STATE of Alabama ex rel. David W. CARVER.
CourtAlabama Supreme Court

Rogers, Howard, Redden & Mills, Birmingham, for appellant.

Wm. H. Ellis, Birmingham, for appellee.


Appellee filed in the Circuit Court of Jefferson County a proceeding in the nature of quo warranto to challenge the legal right of appellant to serve as Chief of Police of the City of Graysville, Alabama.

The complaint, as amended, charges that defendant usurps, intrudes into, and unlawfully holds without warrant of law the office of Chief of Police of the City of Graysville, Alabama, while at the same time holding and occupying the office of Constable of Beat 38 in and for Jefferson County contrary to the provisions of § 5, Title 41, Code of Alabama, Recompiled 1958.

Plaintiffs pray in the alternative that the court will order, adjudge and decree that the respondent is illegally holding this office of Chief of Police of said City of Graysville, Alabama, and has no authority to occupy the same, and that the court shall prohibit him further from exercising any and all rights, privileges and duties of said office.

The trial court entered final judgment that the offices of constable and chief of police each is an office of profit within the meaning and inhibition of said § 5, Title 41, supra, and ousting and excluding defendant from holding said office of chief of police, the defendant having vacated this office when he qualified as constable.

We will not undertake to detail grounds of demurrer filed by the defendant to the complaint as amended, which the court overruled, nor of the demurrer to defendant's answer, which the court sustained. According to our view, the pleadings and assignments of error, as succinctly stated by appellant in his brief, present on this appeal two questions as follows:

(1) Does the chief of police of a municipal corporation organized under the laws of this state hold an 'office of profit under this state'; and

(2) Does § 5 of Title 41, Code of Alabama, Recompiled 1958, deprive a person of a right granted and guaranteed him by § 280 of the Constitution of Alabama of 1901, i. e., may a person occupy the office of constable and also hold another office of profit under the state at one and the same time?

We will first consider whether the office of Chief of Police of Graysville is an office of profit within the purview of § 5, Title 41, Code of Alabama, Recompiled 1958, said section, so far pertinent hereto, reading as follows:

'Persons ineligible to office.--The persons who are ineligible to, and disqualified for holding office under the authority of this state, are:

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'7. No person holding an office of profit under the United States, shall, during his continuance in such office, hold any office of profit under this state; nor shall any person hold two offices of profit at one and the same time under this state, except notaries public.'

A very informative and interesting history of the origin and development of municipal government as applied to cities and towns, authored by the late and eminent Justice deGraffenried of the Supreme Court, appears in the case of State ex rel. Wilkinson v. Lane, 181 Ala. 646, 62 So. 31.

Counties and cities are political subdivisions of the state, each created by sovereign power in accordance with sovereign will, and each exercising such power, and only such power, as is conferred upon it by law. Trailway Oil Co. v. City of Mobile, 271 Ala. 218, 122 So.2d 757.

Municipalities are but subordinate departments of state government. Ex parte Rowe, 4 Ala.App. 254, 59 So. 69 .

The legislature has granted cities and towns in Alabama certain broad and comprehensive police powers which are enumerated in Articles 4 and 5, §§ 485 et seq., 491 et seq., Title 37, Code of Alabama, Recompiled 1958.

Also, many other powers have been granted to municipalities by the legislature respecting the welfare of the residents and other people within the corporate limits and police jurisdiction of the corporation. Title 37 Contains many legislative laws that regulate and grant or deny authority to municipal governing bodies with respect to their duties and powers.

Among these authorizations is § 407, Title 37, Code of Alabama 1940, which reads as follows:

'The council may provide for a tax assessor, tax collector, chief of police, chief of the fire department, and shall specifically prescribe their duties. The council shall designate the person who shall administer oaths and issue warrants of arrest for violations of law and the ordinances of the city or town, and the persons authorized to approve appearance bonds of persons arrested.'

Subsequent sections authorize the municipal governing body to fix salaries and emoluments of these officers.

§ 400, Title 15, Code of Alabama 1940, makes it a misdemeanor for any official of a city or town of Alabama to fail, refuse or neglect to comply with any order or direction of the governor of Alabama to enforce the laws and preserve the peace of Alabama.

§§ 152 and 154, Title 15, Code of Alabama 1940, authorize policemen to make arrests.

So it appears from above that a policeman has the duty of not only enforcing municipal ordinances or bylaws, but he has the responsibility of enforcing state criminal laws and is charged with the duty of making arrests for such violations.

In the case of Hall v. City of Shreveport, 157 La. 589, 102 So. 680, the Supreme Court of Louisiana, in an action brought under the Workmen's Compensation laws of that state, to collect compensation for a widow and minor children of a policeman who was killed in the discharge of his duty, held that the policeman was an official of the city and not an employee or servant of his employer. The court said:

'The cases are numerous that an appointment to a public office does not create a contract. (Citations Omitted)- 'And there is no end of authority that a policeman is a public officer holding his office not under a contract between himself and the municipality, but as a trust from the state. (Citations Omitted)

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'The police officers of a city are not regarded as servants or agents of the municipality. They are conservators of the peace, and exercise many of the functions of sovereignty; they are appointed and paid by the municipality as a convenient mode of exercising the functions of government; they assist the city in the performance of its governmental duties, and not in the discharge of its proprietary obligations. And the municipality is not responsible for their unlawful or negligent acts in the discharge of their duties.' (102 So., at pages 681 and 682)

The court further held that the word 'official,' which was used in the exclusionary provision of the Workmen's Compensation Law, was synonymous with the word 'officer.'

In In re Opinion of the Justices, 254 Ala. 158, 47 So.2d 591, the court observed as follows:

'We are aware of the fact that the Commissioner of Public Welfare has no fixed term of office in that he serves at the pleasure of the State Board of Public Welfare, the appointing authority. Likewise, the statutes do not fix the amount of his salary. It is fixed by the Governor, not to exceed $5700 per annum. § 4, Title 49, Code 1940. But we do not think it can be said that the Commissioner of Public Welfare does not hold an office of profit within the meaning of § 280 of the Constitution Merely because there is no fixed term of office and the amount of his compensation is not definitely fixed by statute. We point out here that § 280 contains no language, as does § 281, which limits its field of operation to officers having a fixed term of office.' (47 So.2d, at page 592)

We further observed:

'* * * We have in several cases pointed out the distinction under our system between a public office and a public employment. Jefferson County v. Case, , 12 So.2d 343; State ex rel. Hyland v. Baumhauer (State ex rel. Mantell v. Baumhauer), , 12 So.2d 326.

"In those cases we gave careful consideration to the meaning of an 'office' in this state for the purpose then in hand. It is in broad terms that he must be invested with a portion of the sovereign power of the state. * * *' * * *.' (47 So.2d, at page 593)

We also observed in Opinion of the Justices, 244 Ala. 386, 13 So.2d 674, that 'Office of Profit' means a public office.

It is our opinion that the Chief of Police of the City of Graysville, exercising as he does the sovereign powers of government in the performance of his duties, is a public officer and holds an office of profit.

The further question presented is whether he holds an office of profit 'under this state,' as those words appear in § 280, Constitution of Alabama 1901, and also in § 5, Title 41, supra.

The word 'under' is defined (along with other definitions) in Funk & Wagnalls New Standard Dictionary, as 'By virtue of; authorized, substantiated, attested, or warranted by; as under the authority of the United States Constitution.'

The late and eminent Justice Coleman, speaking for the Supreme Court of Alabama, in the case of Montgomery v. State ex rel. Enslen, 107 Ala. 372, 18 So. 157, held that a police judge of the City of Birmingham, created by an Act of 1894, was a civil office of profit under the state and within the Constitution, Article 4, § 17, prohibiting one from holding any office of profit under this state, unless elected thereto by the people, created by the legislature when he was a member thereof.

For a copious discussion of the question, see Attorney General ex rel. Moreland v. Detroit Common Council, 112 Mich. 145, 70 N.W. 450, 37 L.R.A. 211.

In view of the fact that the City of Graysville, as do other cities and towns of Alabama, derives its creation and continued existence from the legislature, and the office of chief of police exists by legislative authority, the occupant of which is charged by legislative...

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