Oberhaus v. State

• Decision Date: 30 May 1911
• Citation: 55 So. 898,173 Ala. 483
• Parties: OBERHAUS v. STATE EX REL. MCNAMARA.
• Court: Alabama Supreme Court

55 So. 898

173 Ala. 483

OBERHAUS v. STATE EX REL. MCNAMARA.

Supreme Court of Alabama

May 30, 1911

Rehearing Denied June 23, 1911.

Appeal from City Court of Mobile; O. J. Semmes, Judge.

Petition in the nature of a quo warranto by the State, on relation of J. E. McNamara, against August Z. Oberhaus, to determine the respondent's right to the office of jury commissioner of Mobile county. From a judgment granting the writ, respondent appeals. Reversed and remanded.

Rich &amp Hamilton, for appellant.

Inge &amp McCorvey, for appellee.

SOMERVILLE J.

The appellee filed a petition in the nature of quo warranto in the city court of Mobile charging that the appellant was unlawfully usurping the office of jury commissioner of Mobile county, and was exercising the powers and duties of that office without warrant or authority of law. In accordance with the prayer of the petition, an alternative writ was issued to the appellant requiring him to answer and show cause why he should not be ousted and excluded from said office. Demurrers to the answer made by respondent were sustained by the trial court, and, the respondent declining to plead further, a judgment of ouster was rendered against him from which he appeals. The respondent's answer denies that he is usurping or unlawfully holding said office, and in support of his right thereto he sets out the following facts:

Under the act of August 31, 1909 (Laws 1909, p. 305), he was on November 12, 1909, duly and legally appointed as jury commissioner of Mobile county by Gov. B. B Comer, his term of office being "till the first Monday after the second Tuesday in January, 1911." On January 9, 1911, while still serving under this appointment, he was again duly appointed as jury commissioner of Mobile county for a term of three years from the expiration of his first term, as his own successor in said office. Immediately after his said last appointment, and prior to January 16, 1911, repondent duly qualified as such commissioner, as required by law, and has throughout his said first term and continuously since January 16, 1911, claimed to be and is a member of the jury commission of Mobile county, and has rightfully discharged the duties of said office, for which he possesses all the legal qualifications. On Monday, January 16, 1911, at 2:15 o'clock p. m., Emmet O'Neal, who had been previously elected Governor of Alabama for a period of four years from the first Monday after the second Tuesday in January, 1911, took the oath of office as Governor, and duly qualified as such.

The answer contains other matter, but the facts above recited are all that are material to a determination of the question as to respondent's right to the office of jury commissioner. The determination of the main question obviously depends upon (1) when the official term of Gov. Comer expired; (2) when the official term of Gov. O'Neal began; (3) when the term of the respondent as jury commissioner under his first appointment expired; (4) whether it expired during and before the expiration of Gov. Comer's term; (5) whether, if it did so expire, Gov. Comer could exercise the power of appointing his successor, as conferred on the Governor by section 1 of the act of August 31, 1909; and (6) if Gov. Comer could have so appointed respondent on Monday, January 16, 1911, after the expiration of respondent's original term, whether he might exercise the appointing power a week in advance of its expiration, in anticipation of that event.

The point is made by respondent's counsel on this appeal that the city court of Mobile was without jurisdiction to hear the petition or render judgment thereon. We now proceed to state our views and conclusions with respect to the several questions presented for our consideration.

1. There is no merit in the objection to the jurisdiction of the city court of Mobile. Section 5455, Code 1907, provides, it is true, that "such action must be brought in the circuit court of the county in which the acts are done or suffered, or * * * in the circuit court of the county in which the corporation has its principal office," etc. The caption of the statute, which first appears as section 3422, Code 1896, is "In what county action to be brought," and indicates that the statute was intended merely to fix the venue, and not at all to restrict the jurisdiction to the circuit court eo nomine.

Section 2 of Sess. Acts 1871-72, p. 109, confers on the city court of Mobile "jurisdiction in civil causes (except in actions to try title to land)," as well as "all powers of a civil nature now exercised by the circuit courts of the state and the judges thereof"; and section 1 of Sess. Acts 1888-89, p. 210, with an exception not here material, confirms this jurisdiction and these powers.

Section 3296, Code 1907, is: "Unless otherwise provided by law, the city courts and judges thereof have and exercise all the jurisdiction and powers of the circuit court and the judges thereof; and, when invested with equity jurisdiction, have and exercise all the jurisdiction and powers of the chancery court and chancellors." Section 3259, Code 1907, subd. 1, gives the circuit judges authority "to grant writs of certiorari, supersedeas, quo warranto, mandamus, and all other remedial and original writs which are grantable by judges at common law."

It is difficult to see how language could be more aptly chosen to comprehend and express the legislative intent to give to all city courts and judges jurisdiction and powers concurrent and coextensive with those of circuit courts and judges; and we hold that, whether under the special acts referred to, or under sections 3296 and 3259 of the Code, the city court of Mobile has jurisdiction of this proceeding. If authority were needed, we think the following cases are in point: Tenn. M. B. & L. Ass'n v. State, 99 Ala. 197, 13 So. 687; McDonald v. State, 143 Ala. 101, 39 So. 257; Lee v. State ex rel. Locke, 49 Ala. 43.

The case of Moog v. Doe, 145 Ala. 568, 40 So. 390, relied on by appellant, must be regarded as sui generis, and its operation limited to the special proceeding and statutes there dealt with, which, we think, clearly distinguish it from the present case. One essential difference is that a motion to sell land levied on in a justice court (as in the Moog Case) is not a civil action, and is strictly and purely statutory; while our statutory quo warranto is a civil action (State ex rel. Goodgame v. Matthews, 153 Ala. 646, 45 So. 307), and but a legislative substitute for its common-law prototype, with which it substantially accords ( Harris v. Elliott, 117 Ala. 150, 23 So. 124), and by the general principles of which it is governed. Another feature of the Moog Case, apparently decisive of the conclusion reached, was the express mandate of the statute requiring the justice to return the papers to the clerk of the circuit court, this being the only means by which jurisdiction of the motion to sell was given or could be acquired. Johnson v. Dismukes, 104 Ala. 520, 16 So. 424.

2. By section 116 of the Constitution of 1901 (Criminal Code, p. 92), it is provided that the Governor and other officers named shall hold their offices "for the term of four years from the first Monday after the second Tuesday in January next succeeding their election, and until their successors shall be elected and qualified." It is evident that the term here prescribed must occasionally, by reason of the varying calendar position of the particular Monday indicated, be less than four years in duration. Hence the prescription of four years must be regarded as general only, and as controlled by the particular date mentioned as the beginning of each successive term. It is also evident that, for the same reason, the term between the two particular Mondays that mark the beginning and end of the term will sometimes be more than four years in duration. In such case the incumbent's term nevertheless runs until his successor "shall be elected and qualified."

Gov. Comer was inaugurated and installed in office, as we judicially know, on Monday, January 15, 1907; and Gov. O'Neal on Monday, January 16, 1911, at 2:15 o'clock, p. m. this being in each case "the first Monday after the second Tuesday in January next succeeding their election."

Whether the term of each incoming Governor includes this "first Monday after the second Tuesday," or whether this Monday is a part of, and the last day of, the term of the outgoing Governor, depends of course on the meaning to be given the word "from" as used in section 1116 of the Constitution in the phrase " from the first Monday," etc.

A review of the scores of English and American cases which have during the last 150 years undertaken to give judicial definitions of this and similar words well demonstrates the futility, if not the folly, of the attempt to prescribe a constant and uniform meaning for a word which in itself, and in popular use, is not thus restricted. The opinion of Lord Mansfield in Pugh v. Duke of Leeds, 2 Cowper, 714 decided in the year 1777, throws a curious light upon the vacillations of the earlier cases between technical construction and reason. Referring to one of these cases ( Hatter v. Ash, 1 Ld. Raymond, 84), involving a lease which ran " from the date of the indenture," he says: "After several arguments, Treby, Chief Justice, at first, from the strength of reason, was for supporting the lease; and then, staggered by the weight of authorities, changed his opinion. But when the judgment was given, he absented himself. Powell, Junior, Justice, at first followed the authorities; but afterwards came over to reason; and at last it was agreed, by Neville and the two Powells, that 'from the date' ought to be construed inclusive, and, therefore, that the...