Ex parte Lusk

• Decision Date: 12 May 1887
• Citation: 2 So. 140,82 Ala. 519
• Parties: EX PARTE LUSK.
• Court: Alabama Supreme Court

2 So. 140

82 Ala. 519

EX PARTE LUSK.

Supreme Court of Alabama

May 12, 1887

Appeal from circuit court, De Kalb county.

Application for mandamus to the judge of the Ninth judicial circuit.

The petitioner in this case, John A. Lusk, solicitor of the Ninth judicial circuit of the state of Alabama, having been denied the privileges moved for by him in the circuit court of De Kalb county, as set out in the opinion of the court, on February 2, 1887, applied to the supreme court for an appellate writ of mandamus, etc., alleging substantially the facts set forth in his original petition.

Hamill & Lusk, for petitioner.

Brickell, Semple & Sunter, contra.

SOMERVILLE J.

The relator is the duly elected, commissioned, and qualified solicitor of the Ninth judicial circuit in this state, having acted in this official capacity since November, 1886. The county of De Kalb is one of the counties enumerated by law as belonging to this circuit. In January, 1887, during the regular term of the De Kalb circuit court, and at a time when the criminal docket of the court was required by law to be taken up, the relator made a motion before the circuit judge to be recognized as the solicitor of said circuit, and to be permitted to appear in said court for the purpose of discharging the duties of his office in the prosecution of the criminal causes called for trial; also seeking for permission to appear before the grand jury, then in session so far as to discharge the duties of circuit solicitor. This motion was denied, and a counter-motion was sustained admitting one Milford W. Howard to each of these privileges; it being made to appear that he had been duly appointed and commissioned by the governor of Alabama as solicitor for the county of De Kalb, under the authority of an act approved February 17, 1885, providing for the appointment of such an officer. Acts 1884-85, p. 675. While mandamus will not be awarded to try a disputed title to an office, it is well settled that it is an appropriate remedy to compel the restoration of a rightful incumbent who has been wrongfully deprived of the enjoyment of official privileges by removal or suspension. Ex parte Wiley, 54 Ala. 226; Ex parte Diggs, 52 Ala. 381; High, Extr. Rem. § 67; Weatherly's Case,75 Ala. 248.

The present proceeding, therefore, brings before us in appropriate form the determination of the relator's legal rights, whatever they may be.

There are two questions raised for our consideration: (1) The constitutionality of the act of February 17, 1885; (2) if constitutional, to what extent the act authorizes the solicitor of De Kalb county to supersede the relator in the discharge of his duties as circuit solicitor.

It is contended that the act is in violation of the constitution, because the office of circuit solicitor is created by the constitution itself, and that its duties were intended by the framers of that instrument to embrace each and every county in the judicial circuit for which such officer is elected. It is accordingly insisted that the general assembly has no power to so extend the sphere of the duties of a county solicitor as to interfere with or abolish the customary duties of the circuit solicitor even for a single county in his circuit. It is not denied that the legislative power of the general assembly is practically omnipotent, with constitutional limits,-a proposition which has often and again been decided by this court. Nor is any clause in our constitution relied on as vitiating the act in question, except section 25 of article 6, which reads as follows:

"Sec. 25. A solicitor for each judicial circuit shall be elected by joint ballot of the general assembly, who shall be learned in the law, and who shall, at the time of his election, and during his continuance in office, reside in the circuit for which he is chosen, and whose term of office shall be for six years: provided, that the general assembly, at the first session thereof after the ratification of this constitution, shall by joint ballot elect a solicitor for each judicial circuit in the state, whose term of office shall begin on Tuesday after the first Monday in November, 1876, and continue four years; and provided, that the general assembly may, when necessary, provide for the election or appointment of county solicitors." Const. 1875, art. 6, § 25.

It was under the authority of the last proviso of the foregoing section that the law of February 17, 1885, here assailed as violative of the constitution, was enacted. For a clearer comprehension of the question before us, we may briefly state the provisions of that act. The governor is authorized to appoint a solicitor for each of the several named counties, including the county of De Kalb, who is required to be a resident citizen of the county for which he is appointed, and is authorized to hold office for the term of four years. It is made his duty "to attend each term of the circuit and county courts of the county for which he is appointed, and to prosecute all criminal accusations pending in said courts, whether such accusation is preferred by indictment or otherwise." His duties are made also to embrace criminal prosecutions and investigations before magistrates under certain conditions not material to be here noticed. He is required to take the same oath of office prescribed by law for circuit solicitors, and is declared to be entitled to the same fees for like convictions. This is the entire substance of the law authorizing the appointment of a solicitor for De Kalb county, and defining his duties. Acts 1884-85, p. 675.

It is thus obvious, from the foregoing section of the constitution, that the office of circuit solicitor is a constitutional office, and the provisions relating to it are mandatory, and not directory, to the law-making power. The general assembly has no constitutional power to abolish the office, or to transfer its entire duties to another officer elected in a different mode. They cannot authorize the election of a circuit solicitor by the popular vote, but only by joint ballot of themselves. The term of office cannot be made less than six years. Nor can one be authorized to hold the office, unless he reside in the circuit for which he is chosen. These prohibitions are very plain. The inquiry is, to what extent, if any, does the law under consideration violate either of them, or any other prohibition that may be clearly implied from this clause of the constitution creating the office.

It is an important fact, bearing, as we think, most pertinently on this case, that the constitution nowhere fixes or designates the particular official duties or the compensation either of a circuit or of a county solicitor. These must therefore necessarily be, to a large extent, the subject of legislative control, even in the case of a constitutional office; a proper distinction being taken between regulation and destruction. As said by Chancellor WALWORTH in Warner v. People, 2 Denio, 272: "If the constitution provides for the appointment of an officer in a particular manner, the legislature cannot create a new officer to discharge the same duties, and direct the appointment in a different manner; but the legislature may add to or diminish the duties and fees of the officer." And such is and has always been the practice from the earliest history of the estate. Code 1876, §§ 769-779; Rev. Code 1867, §§ 853-860; Code 1852, §§ 721-728. Offices, in this state, are held not to be property, or in the nature of contracts, but mere public trusts, created for the benefit of the state, and not of the individual; and, within constitutional limits, they may be regulated, controlled, or abolished, within the supreme discretion of the legislature. Ex parte Lambert, 52 Ala. 77; Benford v. Gibson, 15 Ala. 521.

The question is finally resolved into the inquiry as to what authority over this subject is conferred by the last last proviso of the section above quoted: "And provided that the general assembly man, when necessary, provide for the election or appointment of county solicitors. " The effect of a proviso in any clause of the constitution, though not identical with that of a proviso in a statute, is somewhat analogous. "A proviso is something ingrafted upon a preceding enactment, and is legitimately used for the purpose of taking special cases out of the general enactments, and providing specially for them. " Potter's Dwar.St.118. In Wayman v. Southard, 10 Wheat. 30, it is said: "The proviso is generally intended to restrain the enacting clause, and to except something which would otherwise have been within it, or, in some measure, to modify the enacting clause." It may also, it is true, be intended in some cases to restrain its generality, or exclude some possible ground of misconstruction. Pearce v. Bank of Mobile, 33 Ala. 693. As a general rule,...