Miller v. State ex rel. Peek

• Decision Date: 13 February 1947
• Docket Number: 7 Div. 895.
• Court: Alabama Supreme Court
• Parties: MILLER v. STATE ex rel. PEEK.

29 So.2d 411

249 Ala. 14

MILLER v. STATE ex rel. PEEK.

7 Div. 895.

Supreme Court of Alabama

February 13, 1947

W. D. DeBardelaben and Richard B. Emerson, both of Anniston, and Hill, Hill, Whiting & Rives, of Montgomery for appellant.

Knox, Liles, Jones & Woolf and Merrill, Merrill & Vardaman, all of Anniston, for appellee.

LIVINGSTON Justice.

This is an action in the nature of quo warranto (section 1136, Title 7, Code of 1940), instituted in the name of the State on relation of J. L. Peek, and J. L. Peek, individually (section 1142, Title 7, Code), against Cecil C. Miller charging him with usurping, intruding into and unlawfully holding the office of director of traffic and law enforcement, for the city of Anniston, a public office without warrant or authority of law.

In pertinent part, the complaint alleges:

'3. That the respondent, Cecil C. Miller, has usurped, intruded into and unlawfully holds without warrant or authority of law the office of director of traffic and law enforcement for the city of Anniston, Alabama, a municipal corporation, and claims to be clothed with the powers and privileges of said office, and is exercising the powers and functions of the same; that the said office of director of traffic and law enforcement for the city of Anniston, Alabama, which is a public office, was created or attempted to be created by resolution of the board of commissioners of the city of Anniston, Alabama, which said resolution is in words and figures as follows:

"A Resolution No. 744.

"Be it resolved, by the board of commissioners of the city of Anniston, Alabama, as follows:

"Section 1: The office of chief of police of the city of Anniston, Alabama, is hereby abolished.

"Section 2. The office of director of traffic and law enforcement for the city of Anniston, Alabama, is hereby created. The duties and functions of the said director of traffic and law enforcement shall include, besides those duties and functions heretofore performed by the chief of police of the city of Anniston, the further and special duties of supervising such special traffic officers or traffic co-ordinators that may hereafter be appointed by this commission, charged with the duties of bettering the traffic problems that may now or hereafter exist in the city of Anniston, Alabama, to the end that the lives and property of the citizens of said city may be protected and conserved, and, in addition thereto, the further and special duties that the board of commissioners of the city of Anniston, Alabama, may hereafter confer upon and delegate to said director of traffic and law enforcement.

"Section 3. The chairman of the board of commissioners of the city of Anniston, Alabama, shall have direct supervision over the director of traffic and law enforcement for the city of Anniston, Alabama.

"Adopted this, the 8th day of October, 1946.

"Approved this, the 8th day of October, 1946.

"City of Anniston, Alabama

"By /s/ E. D. Banks,

"Chairman of its Board of Commissioners

"By /s/ H. B. Glover,

"Associate Commissioner

"By /s/ S. F. Street,

"Associate Commissioner."

'The premises considered, plaintiffs pray that the respondent, Cecil C. Miller, be required to show by what warrant or authority he claims the right to hold said office and to exercise the powers and privileges thereof, and by what warrant, right, or authority he does exercise the powers and privileges of said office and holds said office, and that on a final hearing and submission of this cause judgment be entered ousting him, the said Cecil C. Miller, from said office and from holding the same and exercising the powers and privileges thereof. And the plaintiffs pray for such other, further, special and general relief as they may be entitled to under the facts and circumstances of this case.'

Demurrers to the complaint were interposed, and by the trial court overruled.

Respondent insists that there is no allegation that the office of director of traffic and law enforcement is a 'public office'; that the averment, 'which is a public office,' modifies or refers to 'the city of Anniston.' The office alleged to have been usurped is 'the office of director of traffic and law enforcement for the city of Anniston.' There is no merit in that argument.

Respondent further insists that, construing the quo warranto petition most strongly against the petitioner, it seeks to remove respondent from a non-existent office.

The argument is, that the petition's allegation that the office of director of traffic and law enforcement for the city of Anniston ' was created or attempted to be created' by a resolution passed by the board of commissioners of the city of Anniston, is but the averment of an attempt to create an office, rather than the averment of the existence of an office.

In Hale v. State, 237 Ala. 191, 186 So. 163, 164, it was held:

'We have repeatedly held that an information in cases of this sort is sufficient, 'if it avers in general terms that the respondent usurps, intrudes into, and unlawfully holds a designated public office.' Sharp v. State ex rel. Elliott, 217 Ala. 265, 115 So. 392, 393; Jackson v. State ex rel., 143 Ala. 145, 42 So. 61; Frost v. State ex rel. 153 Ala. 654, 45 So. 203; Longshore v. State ex rel., 200 Ala. 267, 76 So. 33.

'And in the case of State ex rel. Garrett et al. v. Torbert, 200 Ala. 663, 77 So. 37, which was a quo warranto proceeding, this Court held that, while there was no specific prayer to determine whether or not there existed such an office as the County Court of Hale County, yet a determination of that question was involved in the determination of the other questions, viz., whether the respondent was ex officio judge of the court, and, at the same time, clerk thereof.

'Therefore, when one is called upon in quo warranto proceedings to show by what right he exercises, or assumes to exercise, the function of a public office, he must show that there is a de jure office as well 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 So. 477.'

Here, as in the case of Robinson v. State, 212 Ala. 459, 102 So. 693, the petition followed the language of the statute. The trial court did not err in overruling respondent's demurrer to the petition. See, also, Ferguson v. State, 215 Ala. 244, 110 So. 20.

The respondent answered relator's petition, and, in substance, denied that he had usurped, intruded into and unlawfully holds without warrant or authority of law the office of director of traffic and law enforcement for the city of Anniston, in that (1) said office was legally and lawfully created by the board of commissioners of the city of Anniston by the resolution set out in the petitioners' petition, and that he held said office by virtue of a legal and valid resolution of the said board of commissioners of the city of Anniston appointing him to that office; (2) that said office was legally and lawfully created by the board of commissioners of the city of Anniston by an ordinance, duly and legally adopted by said board of commissioners abolishing the office of chief of police of the city of Anniston and creating the office of director of traffic and law enforcement for the city of Anniston, and by an ordinance duly and legally adopted by said board appointing respondent to the office so created. The minutes of the meetings of the board of commissioners, at which said resolutions and ordinances were adopted, together with the resolutions and ordinances are set forth in the answer.

The trial court sustained petitioners' demurrers to respondent's answer.

Tow substantial questions are here presented. The first is, whether or not Anniston, Alabama, is governed by the civil service laws set forth in sections 391-414, inclusive, Title 62, Code of 1940. The other assumes Anniston to be governed by the civil service laws of the State, and is whether or not the resolution and ordinances involved in this case are void because they show they were intended to evade the operation of the civil service laws.

The answer to the first question is to be determined by a proper construction of section 402, Title 62, Code, of the civil service laws, and section 420, Title 62, Code, of the commission form of government laws, as they apply to the city of Annistion. In pertinent part section 402, supra, is as follows: 'No member of either the police department or of the fire department shall be removed or discharged, nor shall the chief of the police department nor the chief of the fire department, be removed, discharged, or demoted, except for cause, upon written charges or complaint and after an opportunity to face his accusers and be heard in his own defense.' Section 420, supra, provides: 'Each such city shall be governed and managed by the board of commissioners as herein provided, and each and every officer and employee of such city except the health officer and such person as may be employed by him to enforce quarantine, and such other officers and employees as are designated in this subdivision, shall be selected and employed by the said board of commissioners, under its direction, and all salaries and wages paid by said city except as otherwise provided, shall be fixed by said board of commissioners; where not otherwise provided, the commissioners shall prescribe and may at any time change the powers, duties and titles of all subordinate officers and employees of said city, except the title of city health officer, all of whom except those herein otherwise specified shall hold office and be removable at the pleasure of the board of commissioners.'

The foregoing Code sections...