Michael v. State

• Decision Date: 30 June 1909
• Citation: 50 So. 929,163 Ala. 425
• Parties: MICHAEL v. STATE EX REL. WELCH ET AL.
• Court: Alabama Supreme Court

50 So. 929

163 Ala. 425

MICHAEL v. STATE EX REL. WELCH ET AL.

Supreme Court of Alabama

June 30, 1909

Rehearing Denied Dec. 16, 1909.

Appeal from Circuit Court, Marengo County; John T. Lackland, Judge.

Quo warranto by the State, on the relation of W. H. Welch and others, against George J. Michael. From a judgment for relators, respondent appeals. Affirmed.

Wilson & Wilson and C. K. Abraham, for appellant.

Pettus Jeffries & Pettus and Henry McDaniel, for appellees.

DENSON J.

This is an action under the statute (Code 1907, § 5453), brought in the name of the state, on the relation of W. H. Welch and others, against George J. Michael, to oust him from the office of treasurer of the city of Demopolis, and to declare and fix the right of the relator to said office. The circuit court granted the relief prayed, and the respondent has appealed.

Demopolis a city of less than 6,000 but more than 2,000 inhabitants was incorporated by an act of the General Assembly approved December 9, 1896. Acts 1896-97, p. 161. By section 3 of the charter, it was provided that the "government" of the city should consist of a mayor and six councilmen, to be elected on the first Monday in May, 1897, and on the 1st day of May every two years thereafter. By section 17 of the charter it was provided that the board of mayor and councilmen might appoint a clerk, a treasurer, a tax assessor, a tax collector, a marshal, a city attorney, and such other officers as might be deemed necessary for the good government of the city. It was also provided by the charter that the board should prescribe the duties and liabilities of such officers, and fix their compensation. The charter further provided that, before entering upon their respective duties, the mayor, marshal, tax collector, tax assessor, and treasurer should enter into bond, etc. The power was also given the board to remove the designated officers at pleasure--"the mayor excepted." It was further provided that the officers should be appointed at the first regular meeting of the newly elected board, "or as soon thereafter as practicable." Section 18 of the charter provided that the treasurer should receive commissions on the receipts and disbursements, and fixed the amount thereof; and section 43 provided that the treasurer should publish semiannual statements of the receipts and disbursements of the "city government."

The record shows that the office of treasurer was established by the "city government," as provided by the charter, and that the respondent was the incumbent thereof, holding it under appointment by the board of mayor and councilmen elected on the first Monday in May, 1907, and that under the law his term of office did not expire until the first Monday in May, 1909, which was the date of the expiration of the terms of the mayor and councilmen by whom he was appointed. The record further shows that on the 13th day of March, 1908, the city council (as authorized by section 199 of the Municipal Code law [Acts 1907, p. 892; Code, 1907, § 1048]) passed an ordinance whereby the city government became organized under the provisions of that law. It also appears from the record that on the 2d day of April, 1909, at a regular meeting of the city council, an ordinance was adopted, entitled "An ordinance to provide officers and employés for the city of Demopolis, prescribe how they shall be appointed, and fix their term of office and compensation." This ordinance provided that "the officers and employés of the city of Demopolis, not otherwise prescribed by law, should be tax collector, tax assessor, collector of water rents, chief of police, chief of fire department, superintendent of waterworks, two policemen, health officers, sanitary officers, city attorney, and city treasurer." The ordinance had been introduced at a previous meeting of the council held in October, 1908. It provided that each of said officers should be appointed by the mayor as soon after he should take the oath of office as practicable, and that the tenure or term of office of each should be coextensive with that of the mayor conferring the appointment, unless he should be sooner removed as provided, and until his successor was appointed and qualified. The ordinance has a repealing clause, whereby all laws and ordinances in conflict with its provisions are repealed. This ordinance was duly published as required by law.

The information shows that by virtue of said ordinance the mayor, on the 3d day of May, 1909, and after his installation in office, appointed relator to the office of treasurer; that he qualified by taking the required oath and making the required bond. Subsequent to the appointment of the relator by the mayor, but during the meeting of the council at which the mayor was inducted into office, there was introduced an ordinance prescribing the same officers and employés for the town as had been fixed in the ordinance of April 2d, but providing that they should be elected by the city council of Demopolis, and as soon after the members of said council should take the oath of office as practicable, with the reservation that the city health officer and sanitary officer provided for in the ordinance should be appointed by the mayor. It was provided that the ordinance should go into effect immediately upon its passage, and should be and remain of effect only until the first Monday in October, 1910, and until the successors of such officers should qualify. The ordinance purported to repeal all ordinances and resolutions and parts of ordinances and resolutions in conflict therewith. At the meeting at which the ordinance was passed there were present the newly elected mayor and the five newly elected councilmen. Three of the councilmen voted for the passage of the ordinance, and two against it. This ordinance has never been published. After the passage of the ordinance, but at the same meeting of the council, as the record shows, George J. Michael, the incumbent of the office of treasurer, was elected to that office by a majority vote of the councilmen, three constituting a majority.

The first question presented for determination is one preliminary to the main issues involved. It is: Is the office of city treasurer of Demopolis a "public civil office," within the meaning of section 5453 of the Code of 1907, providing this action in the nature of quo warranto for ousting an usurper of a public civil office? In Henly v. Lynne, 5 Bing. 91, Lord Chief Justice Best, defining who is a public officer, said: "Every one who is appointed to discharge a public duty, and receives compensation, in whatever shape, from the crown or otherwise, is a public officer." See, also, Bac. Abr. tit. "Offices and Officers," A. Chief Justice Marshall, in United States v. Maurin, 2 Brock. 102, said: "If a duty be a continuing one, which is defined by rules prescribed by the government, and not by contract, it seems very difficult to distinguish such a charge or employment from an office, or the person who holds it from an officer." An office is a public charge or employment, and the term seems to comprehend every charge or employment in which the public is interested. Shelby v. Alcorn, 36 Miss. 273, 72 Am. Dec. 169; People v. Hayes, 7 How. Prac. (N. Y.) 248; State v. Valle, 41 Mo. 29; 2 Cow. (N. Y.) 13, 29, note "b"; People v. Bedell, 2 Hill (N. Y.) 196; People v. Lee, 28 Hun (N. Y.) 469; Carthew's R. 479. It would seem that these definitions should suffice to show that the office in question is a public civil office within the purview of the statute.

But the statutes (Code 1907, §§ 1069, 1171), it seems, should remove any doubt on the subject.

They provide that "the council shall elect a clerk, * * * and may determine by ordinance the other officers of such city or town, their salary, the manner of their election, and the term of office." Both ordinances, if valid, fix the office of treasurer, define his duties, require him to make bond, etc. If these things do not make an office, and constitute the person appointed or elected to fill it a public officer, within the meaning of the statute, then it would be hard to conceive of a case within the statute where it has not expressly declared the offices and officers who come within its terms. The court concludes that the office in question is a public civil office, and that the title thereto may be tried by quo warranto proceedings under the statute.

The next and principal contention of respondent is that, notwithstanding the "city government" of Demopolis--in virtue of the adoption of the ordinance of March 13, 1908, by its "governing body," in pursuance of section 199 of the Municipal Code act (Code 1907, § 1048)--became duly organized under the provisions of that act, yet neither the ordinance, nor any of the provisions of the act by the ordinance made applicable, conferred upon the then existing "governing body" of the city the power to determine the officers of the city. In other words, that the power conferred upon the "council" by sections 17 and 33 of the act (sections 1067, 1171, of the Code of 1907), could be exercised only by the council elected on the third Monday in September, 1908, and inducted into office on the 3d day of May, 1909, and, therefore, that the ordinance of April 2, 1909, under which the relator received his appointment, is void.

Section 2 of the municipal act (Code 1907, § 1047), after fixing the day for the election of city and town officers, etc continues: "Until the officers elected at the general municipal election on the third Monday in September, 1908, shall have assumed their duties of office, the corporate organization of the several cities and towns of the state shall be and remain as now provided by law, and such municipal corporations shall...