Jackson v. State
| Decision Date | 17 January 1905 |
| Citation | 42 So. 61,143 Ala. 145 |
| Parties | JACKSON v. STATE EX REL. TILLMAN. |
| Court | Alabama Supreme Court |
Appeal from City Court of Birmingham; Charles W. Ferguson, Judge.
"Not officially reported."
Quo warranto by the state on the relation of S. J. Tillman to determine the right of William Jackson to the office of judge of the inferior court of Bessemer. From a judgment sustaining demurrer to the answer, defendant appeals. Affirmed.
Pinckney Scott, for appellant.
J. A Estes, for appellee.
This is a proceeding in the nature of a quo warranto brought by the state of Alabama on the relation of S. J. Tillman. The ground of complaint averred in the information is usurpation by the respondent of the office of judge of the inferior court of Bessemer. A demurrer was interposed by the respondent to the petition on several grounds: The first four of which may be summed up as challenging the petition because of generality of averment, and the fifth for the reason that the petition is not verified. The averments of the petition are that the respondent has usurped, intruded into, and unlawfully holds, without warrant or authority of law, the office of judge of the inferior court of Bessemer and claims to be clothed with the powers, etc., of such office, and is now exercising the powers, etc., of such office. These averments are substantially in the language of the statute. Section 3420, subd. 1, Code 1896. The state has the undoubted right to require every one who claims to hold and is exercising the functions of a public office under constitutional or statutory provisions, to show a lawful right to hold such office, and authority to exercise its functions, and it is unimportant that the suit is brought on the relation of a private person. Montgomery v. State ex rel. Enslen, 107 Ala. 372, 18 So. 157. In proceedings of this character, particularity of averment in the information as to the functions, powers, etc., exercised is not required, and it is sufficient to aver in general terms, designating the particular office, the usurpation, intrusion into, and unlawful holding of the same. 17 Ency. Pl. & Pr. pp. 457, 458, 450. Nor it is necessary that the information be sworn to. The action of the court in overruling the demurrer was free from error.
The respondent by his answer admits "that he is discharging the duties and functions of said office, and is now exercising the powers, jurisdiction, and functions of the office," etc., and without any formal denial of the averment in the information of his usurpation, and intrusion into and unlawful holding of the same, says "that as his authority for discharging the duties of the said office he would show and exhibit to this honorable court his commission, issued by Hon. W. D. Jelks, Governor of the state of Alabama, on the 3d day of October, 1903, and approved by Hon. J. Thos. Heflin, Secretary of the State of Alabama, and affixed thereto the great seal of the state of Alabama therefore having duly answered the petition in this case," etc. The answer was demurred to upon three several grounds: First, that is fails to show that the respondent is entitled or authorized to hold the office of judge of the inferior court of Bessemer; second, that it fails to show that the Governor had lawful authority to issue the commission; and, third, "because the appointment of...
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State v. Dillard
...in general terms, designating the particular office, that the respondent usurps, intrudes into, and unlawfully holds the same. Jackson v. State ex rel., supra. The statutory provided in chapter 128 of the Code (section 5450 et seq.) contemplates an appeal from a judgment vindicating the res......
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State v. Lea
... ... draws the salary of a public office of profit *** as ex ... officio judge of Birmingham court of common claims, Second ... division." ... This ... was sufficient general averment of the term of office and ... usurpation. Jackson v. State ex rel. Tillman, 143 ... Ala. 145, 42 So. 61; State ex rel. Knox v. Dillard, ... 196 Ala. 539, 546, 72 So. 56 ... The ... constitutionality of the act is challenged by this proceeding ... on grounds, among others, (1) that its title and body contain ... two subjects, ... ...
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Miller v. State ex rel. Peek
...as a lawful holding thereof by him, for it is axiomatic that there can be no de jure officer, if there is no de jure office. Jackson v. State ex rel., supra; State ex rel. Little v. Foster, 130 Ala. 154, 30 477.' Here, as in the case of Robinson v. State, 212 Ala. 459, 102 So. 693, the peti......
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State ex rel. Smith v. Deason
...Montgomery v. State, 107 Ala. 372, 18 So. 157. As to the extent of the respondent's burden of proof, we find in Jackson v. State ex rel. Tillman, 143 Ala. 145, 42 So. 61, 62, the 'The Governor of the state has authority to issue commissions to public office, or appoint to the same, when aut......