Fox v. McDonald

Decision Date20 June 1893
Citation13 So. 416,101 Ala. 51
PartiesFOX, MAYOR v. MCDONALD.
CourtAlabama Supreme Court

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Petition by Thomas C. McDonald for a writ of mandamus to be issued to David J. Fox, mayor of Birmingham, commanding him to administer to petitioner the oath of office as chief of police of that city. The city court ordered the writ to issue, from which order the respondent appeals. Affirmed.

Gregg &amp Thornton, Brooks & Brooks, and Jas. E. Hawkins, for appellant.

Cabaniss & Weakley, for appellee.

HEAD J.

On December 12, 1892, the general assembly passed "An act to establish a board of commissioners of police for the city of Birmingham, Alabama," which act provides for the appointment by the probate judge in and for Jefferson county of a board of commissioners of police for said city consisting of five persons, and defines its powers and duties, among which are to appoint a chief of police, and such other police officers and policemen as is or may be prescribed by city ordinance, and to exercise full direction and control of the officers and members of the police force in conformity to existing and future laws and ordinances on the subject. Accordingly, the probate judge appointed five persons, who entered upon the duties of their offices, and as a board, appointed T. C. McDonald to the office of chief of police, who thereafter presented himself to David J. Fox, the mayor of the city, for qualification, and demanded that the oath of office be administered to him; it being the duty of the mayor, under city ordinance, to administer the oaths of office to the officers of police. Fox declined to administer the oath, and McDonald applied to the city court of Birmingham for the writ of mandamus compelling him to do so. From an order of the court granting the peremptory writ, Fox appealed to this court.

This act is assailed by the appellant as unconstitutional on several grounds. We will notice first the chief contention, that it offends sections 1 and 2 of article 3 of the constitution. These are as follows: "Article 3. Distribution of Powers of Government. Section 1. The powers of the government of the state of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: those which are legislative, to one; those which are executive, to another; and those which are judicial, to another. Sec. 2. No person, or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted." It is contended that the act in question is violative of these provisions, for the reason that the probate judge, upon whom the power of appointing the commissioners is conferred, is of the judicial department of the state government, while this power of appointment, so conferred upon him, properly belongs to the executive department, within the meaning of the constitutional provisions quoted. To solve the question thus presented, we must learn what these provisions mean. Noticing them analytically, we observe, first, that the general purpose of the article is the distribution of the powers of the government of the statute; and to that end, it is declared-First, that those powers shall be divided into three distinct "departments;" secondly, that each of these "departments" shall be confided to a separate "body of magistracy," to wit, those powers which are legislative to one, those which are executive to another, and those which are judicial to another; and, thirdly, that no person, or collection of persons, being of one of those "departments," shall exercise any power properly belonging to either of the others, except in the instances expressly directed or permitted. Thus we see that the powers of government distributed are those which are divided into the three departments, and, by these three divisions or departments, confided to separate bodies of magistracy.

First, then, what are we to understand by the terms, "departments" and "body of magistracy," as they are here used? How are these bodies of magistracy, to whom these powers are to be confided, to be created and made known? Of whom or what shall they consist? We get definite and complete information upon this subject from the three succeeding articles of the constitution itself, viz.: "Article 4. Legislative Department. Section 1. The legislative power of this state shall be vested in a general assembly, which shall consist of a senate and house of representatives." "Article 5. Executive Department. Section 1. The executive department shall consist of a governor, secretary of state, state treasurer, state auditor, attorney general, and superintendent of education, and a sheriff for each county. Sec. 2. The supreme executive power of this state shall be vested in a chief magistrate who shall be styled 'The Governor of the State of Alabama."' And: "Article 6. Judicial Department. Section 1. The judicial power of the state shall be vested in the senate, sitting as a court of impeachment; a supreme court; circuit courts; courts of probate; such inferior courts of law and equity, to consist of not more than five members, as the general assembly may from time to time establish; and such persons as may be, by law, invested with powers of a judicial nature."

The term "departments," it will be observed, is first used to denote the three parts or divisions into which the powers of government are to be divided; but in the context it is used interchangeably with the term "body of magistracy," to denote the governing bodies to which the powers of government are respectively confided. Here, then, we have a department or body of magistracy consisting of a senate and house of representatives, to which is confided the legislative power; a department or body of magistracy consisting of a governor, secretary of state, state treasurer, state auditor, attorney general, and superintendent of education, and a sheriff for each county, to which is confided the executive power, the supreme executive power being vested in the governor; and a department or body of magistracy consisting of the senate, sitting as a court of impeachment; circuit courts; courts of probate; such inferior courts of law and equity, to consist of not more than five members, as the general assembly may from time to time establish; and such persons as may be, by law, invested with powers of a judicial nature,-to which is confided the judicial power intended by the constitution to be distributed. When we speak, therefore, of the legislative department, let us be understood to mean, as the constitution intends, the senate and house of representatives; of the executive department, the governor and other officers above named with him; and of the judicial department, the senate, sitting as a court of impeachment, the courts, and so forth, above named, as constituting that department. Keeping these definitions in view, we can the better determine the vital question arising upon the contention now under discussion in this cause, which is, what powers of government does the constitution intend shall be confided to the exercise, respectively, of these several governing bodies? Now, it must be conceded that the powers thus vested in these several departments are intended to be committed to their exclusive exercise; and this, independently of the provision that no person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others. Thus, for instance, the legislative power intended to be vested in the general assembly cannot be delegated to any other body, whether such body be of either the other defined departments or not, but must be exercised exclusively by the general assembly itself. So, also, an executive power intended to be vested in the executive department cannot, be legislation, be vested in any other person or body, whether such person or body be of either of the other departments or not. For instance, the pardoning power, or the power to fill vacancies in certain specified offices, being, by the constitution, vested in the governor, cannot, by legislation, be transferred to another, but must be exercised by the governor exclusively. As this is so in reference to acts expressly confided to a particular department, so, also, must it be true with reference to acts which, by construction or implication, are confided to that department. To repeat, all acts expressly or impliedly assigned to a department by the constitution must be performed by that department, and the power to perform them cannot be conferred elsewhere. Cooley, Const. Lim. marg. p. 115.

We return, then, to the question, what powers does the constitution intend shall be thus confided to the exclusive exercise, respectively, of these several governing bodies? The insistence in argument of counsel for appellant, or that to which it leads, is that, except in cases otherwise provided by the constitution itself, every act which is legislative in its nature, and which pertains to, or in any wise affects, the government of the citizen, or which controls and regulates the conduct of citizens in their mutual intercourse, wheresoever, within the state, such government or control is to be accomplished, and for whatsoever such accomplishment is intended, must be exercised by the state legislative department; that all acts which are of a judicial nature, affecting the government of the citizen, or pertaining to the enjoyment, enforcement, or administration of the laws of the land, must be exercised by the state judicial department, or some member of it; and, likewise, that all such...

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