Baker v. State

• Decision Date: 13 March 1931
• Docket Number: 1 Div. 637.
• Citation: 222 Ala. 467,133 So. 291
• Parties: BAKER ET AL. v. STATE EX REL. GREEN ET AL.
• Court: Alabama Supreme Court

133 So. 291

222 Ala. 467

BAKER ET AL. v. STATE EX REL. GREEN ET AL.

1 Div. 637.

Supreme Court of Alabama

March 13, 1931

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Quo warranto proceeding by the State, on the relation of J Leslie Green and Charles A. Baumhauer, against Estes D. Baker and A. D. Davis. From a judgment for relators, respondents appeal.

Affirmed in part, and in part reversed and remanded.

J. H Webb and Jesse F. Hogan, both of Mobile, for appellants.

Gordon, Edington & Leigh, of Mobile, for appellees.

BROWN J.

The appellees had judgment excluding the appellants from the office of revenue and road commissioners for the first district of Mobile county, and adjudging that the relators, J. Leslie Green and Charles A. Baumhauer, were entitled to the office, and from that judgment this appeal is prosecuted.

The first contention to be noticed is that the information or complaint was subject to the ninth ground of demurrer taking the point that it is not alleged that Baumhauer and Green were residents of the First district.

The proceeding here, as is authorized by the statute, has a dual purpose: First, to exclude the defendants, who are alleged, inferentially at least, to be unlawfully holding and exercising the functions of the office (the demurrer does not question its sufficiency in this respect); and, second, to establish the right of the relators, joined as plaintiff, to hold and exercise the functions of the office.

The first mentioned is the major purpose of the proceeding, and for this purpose the statute authorizes the proceedings to be brought in the name of the state, "on the information of any person giving security for the costs of the action." Code 1923, § 9933.

The demurrer going to "the petition" as a whole, was therefore overruled without error. State ex rel. Knox v. Dillard et al., 196 Ala. 546, 72 So. 56; Jackson v. State ex rel. Tillman, 143 Ala. 145, 42 So. 61; Touart v. State ex rel. Callaghan, 173 Ala. 453, 56 So. 211.

In respect to the other aspect of the proceeding, the statute provides: "When the action is brought against a person for usurping an office, the name of the person rightly entitled to the office, with a statement of his right thereto, may be added, and, when added, judgment may be rendered upon the right of the defendant, and also upon the right of the party so alleged to be entitled; or only upon the right of the defendant, as justice may require." Code 1923, § 9941.

And it has been ruled that good pleading requires the statement of facts, not mere legal conclusions, showing that the relator is entitled to the office. Ham v. State ex rel. Buck, 156 Ala. 645, 47 So. 126. The petition or complaint alleges that the relators were duly elected to the office at the general election held in said county on the 4th day of November, 1930, and that a certificate of their election has been duly issued to them, that they have taken the oath of office and thereby qualified to enter upon the discharge of the duties thereof. The averments were sufficient, prima facie, to entitle them to enter into and exercise the duties of the office. Code 1923, § 2582.

The answer of the respondents admits that they are holding and exercising the functions of the office; that demand was made upon them by the relators to surrender said office on November 17, 1930; that they refused to do so; and asserts: First, "respondents were duly elected to said office at the general election in November 1926, and under the provisions of section 2569 of the Code they are entitled to hold until the 19th day of January, 1931, at which time they will cease to act, and surrender their seats to their legally qualified successors. Second, that under the terms of the Act approved February 28th, 1901, their term of office was fixed at four years, and without regard to the provisions of section 2569, supra, their term of office had not expired on the date demand was made on them by the relators."

The circuit court sustained a demurrer to the answer, and the respondents declined to plead further, and judgment was entered excluding them from office. The respondents had the burden of showing their right to continue in office. State ex rel. Little v. Foster, 130 Ala. 154, 30 So. 477.

It is conceded that the local act, providing for the election of revenue and road commissioners in Mobile county, approved February 28, 1901 (Acts 1901, p. 1842), is applicable, but appellants' contention is that this act is supplemented by the general law in respect to the tenure of office.

The local act, Acts 1901, p. 1842, divided the county into three "revenue and road districts," and repealed all laws in conflict therewith. Section 1 of the act provided for the election of three of such commissioners by the qualified electors residing in the first district, at the general election in August, 1902, and provided that such commissioners must be qualified electors of Mobile county, and reside in the First district, and to hold for a term of four years. Section 2 provided that at the state and county election in August, 1904, "there shall be elected for the term of two years by the qualified electors of Mobile county two revenue and road commissioners for the county of Mobile each of whom shall at the time of the election and while he holds such office be a qualified elector of said county. One of the commissioners shall at the time of such election and while he holds such office reside in the second revenue and road district and the other shall at the time of such election and while he holds such office reside in the third revenue and road district." Section 3 provides "that at the State and county elections in August, 1906, and every four years thereafter all said revenue, and road commissioners shall be elected for the respective districts as provided in the two preceding sections of this act by the qualified electors of the entire county and their term of office shall be four years." (Italics supplied.)

The "Act-to further regulate elections in Alabama," approved October 9, 1903, while it provided in section 27 thereof, that "County Commissioners or Board of Revenue of whatever number composed or courts or boards of like jurisdiction"...