Finklea v. Farish

• Decision Date: 21 April 1909
• Citation: 160 Ala. 230,49 So. 366
• Parties: FINKLEA v. FARISH.
• Court: Alabama Supreme Court

49 So. 366

160 Ala. 230

FINKLEA v. FARISH.

Supreme Court of Alabama

April 21, 1909

Rehearing Denied May 11, 1909.

Appeal from Probate Court, Monroe County; I. B. Slaughter, Judge.

Petition by J. P. Farish to contest the election of B. B. Finklea to the office of tax collector of Monroe county. From a judgment for contestant, contestee appeals. Reversed and rendered.

Denson Simpson, and McClellan, JJ., dissenting.

Barnett & Bugg and Miller & Miller, for appellant.McClelland &amp McDuffie, O. O. Bayles, McCorvey & Hare, and Hybart & Burns for appellee.

SAYRE J.

This appeal arises out of a contest of appellant's election to the office of tax assessor of Monroe county, for which he received a majority of votes at the general election held November 3, 1908. The grounds of contest were stated as follows: (A) The said B. B. Finklea was not at the time of said election, on the 3d day of November, 1908, a qualified elector in and for said county of Monroe; he not having paid the poll tax due from him as a male inhabitant of this state for the year 1908, on or before the 1st day of February 1908, as provided by section 178 of the Constitution of 1901 of the state of Alabama. Petitioner further avers that the poll taxes due from the said B. B. Finklea for the years 1901, 1902, 1903, 1904, 1905, and 1906 were not paid by him until some time in the month of October, 1908, just preceding the election aforesaid. (B) For that said B. B. Finklea was not a resident of the state of Alabama for two years immediately preceding the 3d day of November, 1908. (C) For that the said B. B. Finklea was not a resident of the state of Alabama for the requisite period of time next preceding the day of his registration. There was judgment against the contestee, appellant.

There does not appear to have been any serious contest as to the facts bearing upon the issues raised by any of the grounds of contest, and in respect to those grounds designated as "B" and "C" we deem it sufficient to say that the evidence adduced upon the trial shows to our satisfaction that the contestee had been a resident citizen of the state of Alabama--and of the county of Monroe, if that had been made material by the grounds stated--since his birth, with only occasional temporary absences on business; nor was there any evidence from which reasonable inference could be drawn that he had at any time abandoned his residence in said state and county.

The serious contention relates to the ground of contest designated as "A" in the record. The evidence showed without conflict the existence of the facts particularized under that ground, and further that the contestee was born May 17, 1878, and had been registered as a voter in Monroe county May 15, 1908. Section 1467 of the Code of 1907 provides as follows: "The persons who are ineligible to, and disqualified for holding office under the authority of this state, are: (1) Those who are not qualified electors, except as otherwise expressly provided." Section 178 of the Constitution of 1901: "To entitle a person to vote at any election by the people, he shall have resided in the state at least two years, in the county one year, and in the precinct or ward three months, immediately preceding the election at which he offers to vote, and he shall have been duly registered as an elector, and shall have paid on or before the first day of February next preceding the date of the election at which he offers to vote, all poll taxes due from him for the year nineteen hundred and one, and for each subsequent year." The contest was instituted as provided in section 455 of the Code; the effort being to state a ground of contest in accordance with subdivision 2 of that section. The parts of section 455 material in this connection are as follows: "The election of any person declared elected to * * * any office which is filled by the vote of a single county * * * may be contested by any person who was at the time of either of the said elections a qualified elector, for any of the following causes: * * * (2) When the person whose election to office is contested was not eligible thereto at the time of such election." It thus appears from the undisputed facts and the unambiguous language of the Constitution that contestee was not a qualified elector at the time of the general election held November 3, 1908; but, under the terms of section 2094 of the Code, the term of office of tax assessors elected on November 3, 1908, will begin on the 1st day of August, 1909, and the question of chief importance is whether the contestee's qualification as an elector subsequent to November 3d, and prior to August 1st, to follow, shall be held to have qualified him to hold the office when its term shall begin.

1. The Constitution contains a number of sections defining and stating qualifications for office. Detailed qualifications are stated in respect to the offices of Senators and Representatives, judges, executive officers of the state sheriffs, and solicitors. Const. 1901, §§ 47, 116, 117, 132, 138, 154, 167. There are no detailed qualifications in respect to the office of tax assessor. It would not therefore impede the progress of the argument of the case in hand should it be conceded that, where the Constitution itself prescribes in detail the qualifications for office, the Legislature may not add to or diminish them. The constitutional qualifications affecting tax assessors are those general qualifications which affect all officers of the state, and have reference to conviction for infamous crimes, dueling, and the holding of two offices of profit at one and the same time. Const. §§ 60, 86; Id. § 1 of article 17. None of them would exclude the contestee from the office of tax assessor, but the contention is that the Legislature cannot add to the general qualifications for holding office. The theory of this contention is that eligibility to office belongs to all persons not excluded by the Constitution as an attribute of citizenship, and therefore the Legislature cannot impose any general qualification which the Constitution does not require. Barker v. People, 3 Cow. 686, 15 Am. Dec. 322; State v. George, 23 Fla. 585, 3 So. 81; Thomas v. Owens, 4 Md. 189; Steusoff v. State, 80 Tex. 428, 15 S.W. 1100, 12 L. R. A. 364; and our own cases of Kentz v. Mobile, 120 Ala. 623, 24 So. 952, and Dorsey's Case, 7 Port. 293--sustain the general aspect of the argument. But this court has for long stood by the doctrine that the Constitution is not the source of legislative power, and there are no limits to the legislative power of the state government save such as are written upon the pages of its Constitution. Dorman v. State, 34 Ala. 216; Davis v. State, 68 Ala. 58, 44 Am. Rep. 128; Sheppard v. Dowling, 127 Ala. 1, 28 So. 791, 85 Am. St. Rep. 68. In Kentz v. Mobile, supra, a provision in the charter of the city of Mobile which required that the recorder, therein provided for, should be learned in the law and a practicing attorney, was declared to be offensive to that section of the Declaration of Rights of the Constitution of 1875 which provided: "That all persons resident in this state, * * * are hereby declared citizens of the state of Alabama, possessing equal civil and political rights." That case was decided in 1898. The decision in Dorsey's Case was based upon the first section of the Declaration of Rights of the Constitution of 1819, and proceeded upon like considerations. Section 3, art. 8, of the Constitution of 1875 was as follows: "The following classes shall not be permitted to register, vote or hold office: First.--Those who shall have been convicted of treason, embezzlement of public funds, malfeasance in office, larceny, bribery, or other crime punishable by imprisonment in the penitentiary. Second.--Those who are idiots or insane." The Constitution of 1901 deals with the same subject in a manner significantly different. Section 182: "The following persons shall be disqualified both from registering, and from voting, namely: All idiots and insane persons; those who shall by reason of conviction of crime be disqualified from voting at the time of the ratification of this Constitution; those who shall be convicted"--here follows a list of offenses much enlarged over the list set out in the first subdivision of section 3, art. 8, Const. 1875. Now section 60 of the Constitution of 1901: "No person convicted of embezzlement of the public money, bribery, perjury, or other infamous crime, shall be eligible to the Legislature, or capable of holding any office of trust or profit in this state." These quotations from the suffrage articles of the two Constitutions demonstrate that, as for anything said in the Constitution, a disqualification to vote and register under the Constitution of 1901 does not import a disqualification to hold office. Section 60 is the sole general regulation of qualifications for office. These adjunctive changes made, the omission by the framers of the Constitution of 1901 to carry forward a section of like nature as section 2 of the Bill of Rights of 1875 and similar sections in previous Constitutions, evinced a purpose to change the policy of the state, to avoid the implications adjudged to arise out of such sections in Dorsey's Case and in Kentz v. Mobile, supra, to leave the general qualifications for...