Draper v. State

• Decision Date: 22 December 1911
• Citation: 175 Ala. 547,57 So. 772
• Parties: DRAPER v. STATE EX REL. PATILLO.
• Court: Alabama Supreme Court

57 So. 772

175 Ala. 547

DRAPER v. STATE EX REL. PATILLO.

Supreme Court of Alabama

December 22, 1911

Rehearing Denied Feb. 17, 1912.

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Quo warranto by the State, on the relation of Pierce Patillo against James L. Draper, to determine the right to the office of City Commissioner of Hartselle, Ala. There was a decree for relator, and defendant appeals. Affirmed.

Simpson and Anderson, JJ., dissenting.

It is made to appear from the application: That petitioner was an applicant for the office of commissioner of Hartselle, and that on the 23d day of August, 1911, the Governor of the state caused to be addressed to relator a letter or printed communication advising him of his appointment as commissioner for a term of three years. This letter is made an exhibit. Relator then qualified by filing his bond and oath of office with the judge of probate of Morgan county as required by law, and the judge of probate thereupon officially advised the Governor of the appointment and the fact that petitioner had qualified. That the Governor, on receipt of this communication, indorsed or caused to be indorsed on the back of said communication the following: "Send Com. to P Patillo, Hartselle, Ala."--and caused said official communication, with indorsement thereon, to be placed in an official wrapper in the office of said Governor, which official wrapper bore the following indorsement "Authorized or indorsed thereon by the Governor as follows: Morgan County. Application of P. Patillo; P. O., Hartselle. For appointment to office of city commissioner for three years' term. Precinct ______. Appointed 8/23/1911. By order of the Governor: John D. McNeel, Private Secretary. Notified ______. Qualified 8/26/11. Fee paid 8/26/11." That an attempted cancellation has been made of the date of qualification and the date of payment of fee by lines drawn through said date. It is further alleged that there is a record kept in the office of the Governor, known as the record of the recording secretary, in which is entered the names and other data of executive appointments of the Governor, and that on said record appears and did appear the following, made and entered prior to September 9, 1911: "Morgan County Executive Appointments. Name, Patillo, P.; address, Hartselle; office, commissioner; date appointed, 8/23/11; remarks, three-year term." Here follow similar entries as to other commissioners. And relator shows that across the face of such entries have been drawn pencil marks, and across the face thereof has been written the legend "Canceled," by whom relator is not informed or advised. The other parts of the petition set up the pretended appointment of those who assumed to be acting as commissioners, made some time after the matters above set forth, and show that the town of Hartselle, some time before any appointments were made, had in the proper manner elected to have a commission form of government and that the same belonged to class D of cities in Alabama. Petition further sets out the acts and doings of those alleged to have usurped the office, etc.

Tidwell & Sample, for appellant.

E. W. Godbey, for appellee.

ANDERSON J.

While there appears to be some conflict in the authorities as to what constitutes an appointment to office, the definition of "what constitutes appointment," and to which we adhere, is: Where the power of appointment is absolute, and the appointee has been determined upon, no further consent or approval is necessary, and the formal evidence of the appointment, the commission, may issue at once. Where, however, the assent or confirmation of some other officer or body is required, the commission can issue or the appointment be complete only when such assent or confirmation is obtained. People v. Bissell, 49 Cal. 407. In either case the appointment becomes complete when the last act required of the appointing power is performed. State v. Barbour, 53 Conn. 76, 22 A. 686, 55 Am. Rep. 65. In cases where a commission is required, the appointment is complete when the commission is signed by the executive, and sealed if necessary, and is ready to be delivered or transmitted to the appointee. Mechem on Public Officers, § 114. There seems to be a distinction as to when the appointment becomes complete, in cases where the commission is to be signed by the appointing power and when signed and issued by another. If the commission is to be signed by the appointing power, the issuance of same is essential to a completion of the appointment. Conger v. Gilmer, 32 Cal. 75. If, however, such formal act is to be performed by some other than the appointing power, it constitutes no part of the appointing power. Section 1470 of the Code of 1907 requires commissions to offices to be signed by the Governor and countersigned by the Secretary of State, unless it be the commission to the Secretary of State, which must be signed by the Governor alone. Section 1469 provides what officers must have commissions, and does not include city commissioners or other officers not mentioned; but section 1474, in providing for filling vacancies in all state offices, requires that the appointee must be commissioned. Therefore there is a field of operation for both statutes; section 1469 requiring commissions for all offices therein named, whether elected or appointed, and section 1474 requiring a commission to all offices appointed by the Governor to fill vacancies, whether among the officers named in section 1469 or not. Indeed, it seems to be the policy of our legislative system that a commission is essential to the exercise of the duties of a commissioned officer, as section 7447 of the Code makes it an offense for an officer required to have a commission to exercise the duties of the office without first having obtained the commission. This is an old section of the Code, and was amended, by implication, by new section 1472 of the Code, in so far as it might apply to elective officers who had provided themselves with a legal certificate of their election. As to all others, it is still in force, and indicates that all appointments should be made by the issuance of a commission, and which is essential to the exercise of the duties of the office. "The power to appoint to fill vacancies may exist in two classes of cases: (1) Vacancies in offices originally filled by appointment; and (2) vacancies in offices originally filled by election. A vacancy exists when there is no person lawfully authorized to assume and exercise at present the duties of the office." Mechem on Public Officers, § 125. Mr. Mechem also says, in speaking of a newly created office, in section 132 of his work: "Whether a newly created office, which has never had an incumbent, and which no one is now legally authorized and qualified to assume, can be deemed vacant, so as to authorize an appointment to fill it, is a question upon which the authorities are not in harmony; but the weight of authority seems to be that it is to be deemed vacant." Thus it is said in Indiana: "There is no technical or peculiar meaning to the word 'vacant,' as used in the Constitution. It means empty, unoccupied; as applied to an office, without an incumbent. There is no basis for the distinction urged that it applies only to offices vacated by death, resignation, or otherwise. An existing office, without an incumbent, is vacant, whether it be a new or an old one. A new house is as vacant as one tenanted for years which was abandoned yesterday. We must take the words in their plain usual sense." Stocking v. State, 7 Ind. 326; State v. Irvin, 5 Nev. 111; People v. Mott, 3 Cal. 502; Rhodes v. Hampton, 101 N.C. 629, 8 S.E. 219.

We now come to the last and most serious question in the case: Are the commissioners of the city or town of Hartselle state officers within the meaning of section 1474 of the Code of 1907? Judge Dillon, in his great work on Municipal Corporations, in drawing a distinction between state and municipal officers (volume 1 [5th Ed.] § 97), says "Questions have arisen under special constitutional provisions respecting the authority of the Legislature over municipal offices and officers. And here it is important to bear in mind the...