Heck v. Hall, 3 Div. 303.

• Decision Date: 29 June 1939
• Docket Number: 3 Div. 303.
• Citation: 238 Ala. 274,190 So. 280
• Parties: HECK, STATE COMPTROLLER, v. HALL ET AL.
• Court: Alabama Supreme Court

190 So. 280

238 Ala. 274

HECK, STATE COMPTROLLER, v. HALL ET AL.

3 Div. 303.

Supreme Court of Alabama

June 29, 1939

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Bill for declaratory judgment by I. C. Heck, as Comptroller of the State, against Grover C. Hall and others, as members of the State Personnel Board, and I. J. Browder, as State Director of Personnel, to determine the validity of the Merit System Act. From a decree favorable to respondents, complainant appeals.

Modified and affirmed.

Thos S. Lawson, Atty. Gen., and Chas. L. Rowe, Atty. Gen., for appellant.

J. M Bonner, Legal Adviser to the Governor, of Montgomery, for appellees.

KNIGHT Justice.

I. C. Heck, the Comptroller of the State of Alabama, impressed that the Act of the Legislature, Regular Session 1939, approved March 2nd, 1939, and known as the "Merit System Act" was unconstitutional, and therefore void, brought this proceeding in the Circuit Court of Montgomery County against the respondents, Grover C. Hall, Thomas E. Kilby and John H. Peach, as Members of the State Personnel Board of the State of Alabama, and I. J. Browder, as State Director of Personnel of the State of Alabama, for declaratory judgment as to the validity of said Act.

It was insisted in the court below, and the insistence is renewed here on this appeal, that said Act is obnoxious to a number of the provisions of the State Constitution, particularly Sections 1, 21, 42, 43, 44, 45, 70, 112, 134, 137, 139, 164 and 166.

In the outset it may be stated that the entire Act is highly remedial, and should be liberally and favorably treated and construed with reference to the evils it was intended to curb, and the highly beneficent aims that inspired its adoption. Chittenden v. Wurster, 152 N.Y. 345, 46 N.E. 857, 37 L.R.A. 809.

It is generally recognized that the legislature may enact laws providing that appointments to office, or to places of employment, according to merit and fitness, and that such merit and fitness shall be determined by examinations competitive, or otherwise. People ex rel. Akin v. Kipley, 171 Ill. 44, 49 N.E. 229, 41 L.R.A. 775.

"The whole subject of the creation of offices, the delegation and regulation of the powers and duties of officers, and the prescribing of the manner of their appointment or election, comprises functions which are inherently legislative and cannot be considered as in violation of constitutional provisions separating the three main departments of government, the legislative, executive and judicial. Therefore, the expediency of adopting civil service regulations, and the wisdom of the means and methods established by which fitness of persons who apply for office or position in the public service may be ascertained, are generally recognized to be questions determinable solely by the legislature. The decisions have uniformly upheld this general right of the legislature to establish civil service systems, the few attacks which have been successful in assailing such laws having been based on some special requirements of the law or some peculiar constitutional provision. Since the right to hold public office is not a natural right of the citizen, or one guaranteed to him by the constitution, the making of an appointment to public office dependent upon fitness, to be ascertained as far as possible by competitive examination, does not create an unconstitutional discrimination between different classes of citizens in regard to the right to enter upon and continue in the public service. A public office is not the property of the office holder within the constitutional provision against depriving a man of property, nor does it ever become a vested right as against the right of the state to remove him. The main consideration in the selection of officers and agents is the public welfare, and the state, like any other principal, may select its agents, and acting through its legislature may determine for itself the methods of choosing its employees and the selection of those whose appointment will best subserve the public good; and one who desires to serve in an official capacity must submit to the orders and regulations under which he is admitted to the service." (Italics supplied.) 5 R.C.L. p. 610, Sec. 3; People ex rel. v. McCullough, 254 Ill. 9, 98 N.E. 156, Ann.Cas.1913B, 995; Newcomb v. Indianapolis, 141 Ind. 451, 40 N.E. 919, 28 L.R.A. 732; People ex rel. Akin v. Kipley, supra; Rogers v. Buffalo, 123 N.Y. 173, 25 N.E. 274, 9 L.R.A. 579; State ex rel. Buell v. Frear, 146 Wis. 291, 131 N.W. 832, 34 L.R.A.,N.S., 480; Goodrich v. Mitchell, 68 Kan. 765, 75 P. 1034, 64 L.R.A. 945, 104 Am.St.Rep. 429, 1 Ann.Cas. 288.

"In exercising its general authority and discretion the legislature has the constitutional right to create a board of civil service commissioners and to delegate to it the power to make rules, not inconsistent with existing laws, to conduct investigations and in the course thereof to compel the attendance of witnesses and the production of evidence, and generally to exercise whatever administrative measures may be necessary to effect the purpose of the civil service act; and this is not considered as being a delegation of power to enact laws or of judicial functions, but merely a delegation of administrative powers and duties. In the exercise of the authority of civil service commissioners or other public officers thus conferred, they may prepare and promulgate rules for conducting civil service examinations, and these rules usually have the force and effect of law." 5 R.C.L. Sec. 5, p. 611; Ransom v. Boston, 192 Mass. 299, 78 N.E. 481, 7 Ann.Cas. 733; Hale v. Worstell, 185 N.Y. 247, 77 N.E. 1177, 113 Am.St.Rep. 895.

In the case of Conner v. Mayor, etc., 5 N.Y. 285, it was observed: "Public offices * * * are not incorporeal hereditaments; nor have they the character or qualities of grants. They are agencies. With few exceptions, they are voluntarily taken, and may at any time be resigned. They are created for the benefit of the public, and not granted for the benefit of the incumbent. Their terms are fixed with a view to public utility and convenience, and not for the purpose of granting the emoluments during that period to the officeholder." (Italics supplied.)

In the case of State ex rel. Buell v. Frear, Secretary of State, 146 Wis. 291, 131 N.W. 832, 834, 34 L.R.A.,N.S., 480, it is said, with reference to the civil service law of that state: "It rests with the Legislature to impose such conditions [referring to offices other than constitutional] as the nature of the various kinds of services demands and as may be required to remove existing or threatened evils incident thereto. So far as the act prescribes that appointments to and promotions in the civil service of the state 'shall be made only according to merit and fitness,' to be ascertained by examinations when practicable; creates a commission consisting of three members to be appointed by the Governor, by and with the advice of the Senate, for the purpose of carrying the law into effect; grants authority to them to make rules for carrying into effect the powers conferred on them; and excepts certain offices from the operation of the statute--it is an appropriate exercise of legislative power to secure improvement in the civil service; to regulate the civil service for the purpose of eradicating existing evils; to secure servants of skill and fitness; to deal more justly with servants entitled to reward for meritorious and efficient service; and to effectuate the purpose of promoting better government."

A public office is but a public agency; and the officer is but an agent of the public. The chief consideration in the selection of these agents should always be the public welfare, and the state can, when there are no constitutional limitations acting as barriers, undoubtedly fix and prescribe such qualifications for appointment as will best insure the selection of competent and capable servants.

In this connection, what was said by Mr. Justice Peckham, while serving on the Court of Appeals of New York, is so sound and so convincing that we here reproduce a part of his opinion, Rogers v. City of Buffalo, 123 N.Y. 173, 25 N.E. 274, 278, 9 L.R.A. 579: "Looking at it [the civil service law of New York] as a matter of common sense, we are quite sure that the framers of our organic law never intended to oppose a constitutional barrier to the right of the people through their legislature to enact laws which should have for their sole object the possession of fit and proper qualifications for the performance of the duties of a public office on the part of him who desired to be appointed to such office. So long as the means adopted to accomplish such end are appropriate therefor, they must be within legislative power. The idea cannot be entertained for one moment that any intelligent people would ever consent to so bind themselves with constitutional restrictions on the power of their own representatives as to prevent the adoption of any means by which to secure, if possible, honest and intelligent service in public office."

A careful reading of the Constitution of Alabama will disclose nothing to indicate that the legislature, in dealing with offices and employments of its creation, did not possess a free hand in imposing qualifications upon those who would aspire to appointment to such offices and employments. The right to create necessarily carried with it the right to prescribe lawful qualifications, to the end that the state should be served only by capable and efficient public servants.

The foregoing will fully serve to demonstrate that it was within legislative competence to enact a Merit Service Law, and this brings us, therefore, to the...