Sharp v. State

• Decision Date: 28 January 1928
• Docket Number: 6 Div. 61
• Citation: 217 Ala. 265,115 So. 392
• Parties: SHARP v. STATE ex rel. ELLIOTT.
• Court: Alabama Supreme Court

115 So. 392

217 Ala. 265

SHARP v. STATE ex rel. ELLIOTT.

6 Div. 61

Supreme Court of Alabama

January 28, 1928

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Quo warranto proceeding by the State of Alabama, on the relation of A.D. Elliott, and A.D. Elliott individually, against M.J Sharp. From a judgment ousting him from office, respondent appeals. Affirmed.

Fred Fite and Erle Pettus, both of Birmingham, for appellant.

W.L Acuff, of Leeds, for appellee.

SOMERVILLE J.

As repeatedly held by this court, the 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. Jackson v. State ex rel., 143 Ala. 145, 42 So. 61; Frost v. State ex rel., 153 Ala. 654, 45 So. 203; State ex rel. Knox v. Dillard, 196 Ala. 539, 72 So. 56; Longshore v. State ex rel., 200 Ala. 267, 76 So. 33. The information in this case meets all requirements, and is not subject to any ground of the demurrer.

The answer, it will be observed, denies that the respondent usurps, or unlawfully holds, the office in question, and affirms that he holds it "by virtue of appointment made, and commission issued," by the Governor; averring further that:

"Said office was vacant, and the said Governor had authority to make said appointment and to issue the commission which respondent holds therefor."

The respondent insists that this answer sufficiently shows that he is lawfully holding the office, and insists, further, that it is not subject to any of the grounds of demurrer.

In this proceeding, when the state has shown, or the respondent has admitted, that the respondent is holding and exercising the powers and duties of a public office under the state, he must then show "by what authority he holds the office, and that he is in the rightful exercise of its duties and powers." Montgomery v. State ex rel. Enslen, 107 Ala. 373, 384, 385, 18 So. 157.

In accordance with this rule as to the burden of proof, the respondent's answer must assume the burden, and must allege the facts which are necessary to show that he lawfully holds the office, and rightfully exercises its duties and powers. As said in Jackson v. State ex rel. Tillman, 143 Ala. 145, 148, 42 So. 61, 62:

"In such a case it is not enough to show what might be termed a bare prima facie right to the office, such as would be evidenced by the holding of a commission from the Chief Executive, but the inquiry reaches further than this, and requires that it be shown that the Governor thereunto was lawfully authorized to act. State ex rel. Little v Foster, 130 Ala. 154 .

"Non constat," it was further observed, "the supposed authority upon which the Governor claimed to act in issuing the commission, might be based upon a void statute--one void as offensive to some constitutional provision, and, if the state should be required to take issue on the answer, the respondent, upon the introduction in evidence of his commission, would make good his plea, entitling him to judgment; or, if the state should be required to reply specially to such a plea, the burden would be changed from that of the defendant, showing his lawful right and authority, to the state,

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