Prowell v. State

• Decision Date: 10 January 1905
• Citation: 142 Ala. 80,39 So. 164
• Parties: PROWELL v. STATE EX REL. HASTY ET AL.
• Court: Alabama Supreme Court

39 So. 164

142 Ala. 80

PROWELL v. STATE EX REL. HASTY ET AL.

Supreme Court of Alabama

January 10, 1905

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

Information in the nature of a quo warranto by the state, on the relation of Alonzo L. Hasty, and by said Hasty individually, against Samuel P. Prowell. From a judgment of ouster, respondent appeals. Affirmed.

The proceedings in this case were had upon an information in the nature of a quo warranto, being filed by the state of Alabama on relation of Alonzo L. Hasty, and Alonzo L. Hasty as an individual. The petition was addressed to the judge of the First judicial circuit, and filed in the circuit court of Marengo county. It was averred in the petition that Alonzo L Hasty was a resident of Marengo county, and that on the 8th day of November, 1904, he was duly elected judge of probate of Marengo county, Ala., and was regularly declared to have been elected; that there was issued to him a commission as probate judge of Marengo county, which commission he held at the time of the filing of the information; that he had given bond and had taken the oath of office prior to the filing of the information; that the appellant, Samuel P. Prowell, at the time of the filing of the information, held and exercised the office of probate judge. The prayer of the petition was that a writ of quo warranto or other proper writ be issued directing the said Samuel P. Prowell to show by what warrant or authority he holds and exercises the office of probate judge of Marengo county, that upon the hearing the respondent be excluded from said office, and that judgment be rendered declaring that the said Hasty was entitled to the office of judge of probate of said county. The respondent demurred to the petition upon the following grounds: (1) Under the law the said Samuel P. Prowell was entitled to hold the office of judge of probate of Marengo county until the 3d day of November, 1905, and that said Hasty was not entitled to assume said office until said date. (2) The allegations of the petition show on its face that the said Hasty was elected to the office of judge of probate of said county subsequent to the 3d day of November, 1904, and could not qualify as such judge of probate until the 3d day of November, 1905. These demurrers were overruled. Thereupon the respondent filed an answer, which was in words and figures as follows "That on, to wit, the first Monday in August, 1898, the said respondent was duly and legally elected to the office of judge of probate of Marengo county, Ala., and that thereafter he took the oath of office, and executed, had approved, and filed the bond required by law, and received a commission from the Governor, and was on, to wit, the 3d day of November, 1898, duly installed into the office of judge of probate of Marengo county, Ala., for a term of six years, and until his successor was elected and qualified. That his successor has been elected, and was so elected on the 8th day of November, 1904. That his said successor, the said A. L Hasty, cannot under the law assume said office until the 3d day of November next after his election, which is the 3d day of November, 1905, and that until the said 3d day of November, 1905, he is entitled to hold said office." To this answer the petitioner demurred upon the following grounds: (1) Said answer shows that the respondent's term of office expired November 3, 1904. (2) Said answer shows that the respondent is holding said office unlawfully. (3) The said answer shows that Alonzo L. Hasty was entitled to said office upon his having been duly elected and qualified for the position. (4) The said answer shows no right or warrant in respondent to hold said office. This demurrer was sustained, and, the respondent declining to plead further, the court rendered a judgment holding that the said Alonzo L. Hasty was entitled to the office of the judge of probate of Marengo county, Ala., that the respondent was unlawfully holding and exercising the duties of said office, and was intruding therein, and ordered and adjudged that the said respondent be ousted and excluded from said office. The respondent appeals, and assigns as error the ruling of the trial court upon the pleadings and the judgment of ouster.

J. M. Miller and De Graffenried & Evans, for appellant.

SIMPSON J.

This was a proceeding in the nature of quo warranto under section 3420 of the Code of Alabama of 1896, brought by appellees against appellant. The demurrers and argument of counsel, in connection with the petition and answer, show that Samuel P. Prowell was elected judge of the probate court of Marengo county at the general election in August, 1898, and that said A. L. Hasty was elected to the same office at the general election on the 8th day of November, 1904; and the question at issue is that said Prowell claims that he is entitled to hold said office until November, 1905, while the relator, A. L. Hasty, claims that, having been duly elected and having been qualified and commissioned by the Governor of Alabama, he is entitled to demand that said office be turned over to him.

The Constitution of 1875, which was in force when said Prowell went into office, provided that the probate judges should "hold office for the term of six years, and until their successors are elected, or appointed, and qualified." Article 6, § 15. His term of six years expired on the 3d day of November, 1904, and his successor has been elected, has qualified, and been commissioned. But appellant claims that, inasmuch as sections 3054 and 3354 of the Code of Alabama of 1896 stand unrepealed, providing that probate judges and other officers hold their terms for six years from the 3d day of November after their election, and until their successors are elected and qualified, said Hasty's term is necessarily postponed until November, 1905, and said Prowell is entitled to hold the office until that time. We regard it as the settled law of this state that the words "until his successor is elected and qualified" were never intended to prolong the term of office beyond a reasonable time after the election, to enable the newly elected officer to qualify. City Council of Montgomery v. Hughes, 65 Ala. 201, 206, 207; Chelmsford Co. v. Demarest, 7 Gray, 1. As stated by Chief Justice Brickell in the Hughes Case, supra, after the expiration of such reasonable time the office would become vacant. Consequently, if the law should be declared as contended for by appellant, it would work no benefit to him.

But without stopping to consider what would be the result as to the relator in this proceeding, and as the parties to this case desire and the interest of the...