Longshore v. State

• Decision Date: 07 June 1917
• Docket Number: 7 Div. 873
• Citation: 200 Ala. 267,76 So. 33
• Parties: LONGSHORE v. STATE ex rel. KROELL.
• Court: Alabama Supreme Court

76 So. 33

200 Ala. 267

LONGSHORE v. STATE ex rel. KROELL.

7 Div. 873

Supreme Court of Alabama

June 7, 1917

Rehearing Denied June 28, 1917

Appeal from Circuit Court, Shelby County; Lum Duke, Judge.

Quo warranto by the State, on relation of P.J. Kroell, against A.P. Longshore, Sr. Judgment of ouster, and respondent appeals. Affirmed.

Browne Longshore, Koenig & Longshore, of Columbiana, and E.H. Dryer of Birmingham, for appellant.

W.L Acuff, of Columbiana, for appellee.

SOMERVILLE J.

The state of Alabama, on the relation of P.J. Kroell, files its petition in a quo warranto proceeding calling upon the respondent, A.P. Longshore, to show by what authority he claims to hold the office of president of the board of revenue of Shelby county, and praying that he be ousted therefrom. Besides the formal parts, the petition charges simply that the respondent "has usurped, intruded into and unlawfully holds, without warrant or authority of law," the office in question, which is a public civil office of the state of Alabama.

Demurrers to the petition being overruled, respondent filed a general answer and a number of special pleas. A demurrer was sustained to the answer, and all the special pleas were eliminated either by demurrer or by motion to strike, except plea 11, on which issue was joined, and the trial was had on the pleadings and an agreed statement of facts.

The trial court rendered a judgment of ouster in accordance with the prayer of the petition, from which respondent appeals.

A local act, which became effective in May, 1911 (Local Acts 1911, p. 154), created a board of revenue for Shelby county, and abolished the court of county commissioners. The new board consisted of a president and four members, to be appointed initially and thereafter by the Governor.

A local act approved September 2, 1915 (Local Acts 1915, p. 199), amended the previous act by making the president and associate members of the board elective at the general elections, instead of appointive by the Governor, their terms to run, with other county officers, from the first Monday after the second Tuesday in January. Under the first act the relator, Kroell, was appointed and commissioned by the Governor as president of the board on May 22, 1915. Under the amendatory act the respondent, Longshore, and the relator, Kroell, were candidates in the general election of November, 1916, the former for president and the latter for member of the board of revenue, and their election to those offices was certified by the proper officer to the secretary of state. Thereupon, on November 22, 1916, a commission was issued to each of them by the Governor in the usual form. The terms of office to which these commissions relate were to begin, under the amendatory act, on Monday, January 15, 1917, up to which date the respondent, Longshore, remained legally incumbent in the office of probate judge of Shelby county, and the relator, Kroell, remained legally incumbent in the office of president of the board of revenue. On that date Longshore assumed the office of president of the board, and Kroell assumed the office of associate member of the board, and have since so acted.

The petition is filed on the theory that the local act of September 2, 1915, is void because violative of section 106 of the Constitution, and hence the commission issued to respondent on a void election gives him no title to the office. The invalidity of that act, for the reason stated, is conceded and affirmed by respondent. His defenses, however, are threefold. He contends:

(1) That, since the relator anticipated his own automatic reinstatement in the office of president of the board if respondent is ousted, the proceeding is in effect a private suit between relator and respondent, and, relator having accepted the benefits of his own election, though his election and respondent's may both be void, and having occupied the office of member of the board, and received its emoluments, he is thereby estopped from denying respondent's title to the office of president of the board.

(2) That, though respondent's election was void, yet the commission issued to him by the Governor on November 22, 1916, was in effect an executive appointment to the office under the provisions of the act of 1911; this upon the theory that the office of president of the board was then vacant by reason of the fact that Kroell, previously incumbent, had vacated the presidency of the board by accepting on that date his own commission from the Governor as associate member of the board.

A third contention, as shown by the allegations of plea 11, was that the act of 1915 is invalid entirely, and the act of 1911 is invalid in part, viz. as to its provisions for executive appointment of the members of the board, and hence respondent's election in November, 1916, will be imputed to, and be upheld as valid under, the general provision for the election of such officers to be found in section 334 of the Code.

This last contention is not insisted upon in argument, and,...