Shepherd v. Sartain

• Decision Date: 30 June 1913
• Citation: 64 So. 57,185 Ala. 439
• Parties: SHEPHERD v. SARTAIN.
• Court: Alabama Supreme Court

64 So. 57

185 Ala. 439

SHEPHERD v. SARTAIN.

Supreme Court of Alabama

June 30, 1913

Rehearing Denied Dec. 18, 1913

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Election contest by Charles M. Sartain against James W. Shepherd. From a judgment for contestant, contestee appeals. Affirmed.

See also, 172 Ala. 205, 55 So. 627; 173 Ala. 474, 55 So. 919.

McClellan J., dissenting.

Bankhead & Bankhead and F.A. Gamble, all of Jasper, for appellant.

R.A Cooner and W.C. Davis, both of Jasper, and O.D. Street, of Guntersville, for appellee.

SOMERVILLE J.

The appellant has shown sufficient diligence in perfecting and prosecuting his appeal, and, in the exercise of our discretion in the enforcement of the rules of practice prescribed for such cases, the appellee's motions to dismiss the appeal and also to affirm the judgment for lack of diligence in those respects will be overruled. The appellee, Sartain, prosecuted a statutory contest of the election of the appellant, Shepherd, to the office of probate judge of Walker county, at the general election in November, 1910, claiming that he was himself elected to that office by a majority vote of the qualified electors of the county. The canvassing board declared, upon the face of the returns, that Shepherd received 1,846 votes, and Sartain 1,820 votes, and that Shepherd was elected to the office. The trial court correctly found that by some fraudulent means the returns as originally certified from four of the precincts had been so altered as to deprive Sartain of 25 votes cast for him, and to give to Shepherd 20 votes to which he was not entitled. It further correctly found that 7 votes cast for Sartain, and 3 votes cast for Shepherd, were improperly rejected by the election managers, and these votes were added to the corrected total of each. The result thus arrived at, which we adopt as patently correct, was that Sartain's total vote was 1,852, and Shepherd's was 1,829. From these restated totals the number of illegal votes shown by the record to have been received by each will be deducted in order to obtain the final and decisive result.

Before proceeding to that conclusion, it is in order to determine a preliminary question of law presented by the action of the trial court in sustaining the contestant's demurrer to a special plea interposed by the contestee. This plea avers, in substance, that, at the time of the election here contested, the contestant was holding an office of profit under the United States, viz., the office of postmaster at Oakman, Walker county, Ala., with an annual salary in excess of $200; and that contestant has continued in said office since said election until the plea was filed in October, 1911.

The grounds of demurrer to the plea make the point that it does not show that the contestant was ineligible to election to the contested office at the time of his election.

Section 1467 of the Code of 1907 is: "The persons who are ineligible to, and disqualified for holding office under the authority of this state, are: *** (7) No person holding an office of profit under the United States, shall, during his continuance in such office, hold any office of profit under this state; nor shall any person hold two offices of profit at one and the same time under this state, except notaries public." Subdivisions 1 to 6, inclusive, comprehend a categorical statement of the persons who are ineligible to and disqualified from holding office. It is settled in this state, in harmony with reason and the weight of judicial authority, that "ineligible" here means inelectable--that is, not capable of being chosen--and hence the qualifications enumerated relate to the date of election, and not merely to the date of actual induction into office. Finklea v. Farish, 160 Ala. 230, 237, 49 So. 366.

It is the contention of the contestee that the same doctrine applies also to the disqualification declared in subdivision 7, and hence that one holding any office of profit cannot, prior to his vacation thereof, be lawfully elected to another office under the authority of this state; his subsequent vacation of the first office before entering into the second not sufficing to qualify him for holding the latter. Our consideration of the history, language, and purpose of this provision has led us to a contrary conclusion. The progenitor of section 1467 of the present Code is found in section 105 of the Code of 1852, which enumerates seven classes of "persons who are ineligible to, and disqualified from holding office under the authority of this state"; subdivision 7 being: "Members of Congress, and persons holding any office of profit, or trust, under any foreign power, either of the states of this Union, or under the United States, other than the office of postmaster." Under the mandate of section 2 of article 16 of the Constitution of 1875, requiring the Legislature to give effect to section 1 of the article, subdivision 7 of the former statute was eliminated, and the new subdivision 7 was adopted in section 149 of the Code of 1876, in the exact language of the Constitution, which was: "Section 1. No person holding an office of profit under the United States, except postmasters whose annual salary does not exceed two hundred dollars, shall, during his continuance in such office, hold any office of profit under this state; nor shall any person hold two offices of profit at one and the same time under this state, except justices of the peace, constables, notaries public and commissioners of deeds." Article 16, Const.1875, is now incorporated in sections 280 and 282 of the present Constitution. As thus enacted, subdivision 7 remained unchanged until the adoption of the Code of 1907, when the exception in favor of postmasters was abolished.

It thus appears with reasonable certainty that subdivision 7 ceased to be a mere designation of a class of persons ineligible to as well as disqualified for holding office, and, wholly omitting the anterior denouncement of ineligibility to office, forbids only the holding of a state office during the occupancy of a preceding office. To hold that the word "ineligible" in the introductory clause of the statute is referable to subdivision 7, would be to assume a logical as well as a grammatical absurdity. A person who is ineligible to office is, ex vi termini, disqualified also for holding office after his election. The latter clause of the statute was wholly unnecessary except for the prevention of incumbency by appointment. But its use clearly indicates the conception of a disability distinct from that of ineligibility, and its exclusive use in subdivision 7 clearly confines the limitation to the holding of the second office. So the question presented is: What is the significance of the phrase "hold office," as used in the constitutional provisions which the statute designs to execute?

Judge Freeman, with his usual accuracy, thus states the effect of such provisions: "In order to preserve a pure public policy, state Constitutions and statutes frequently provide that one and the same person shall not, at the same time, hold an office of profit or trust both under the state and under the national government, or that persons holding judicial offices shall not, at the same time, hold other offices of trust or profit, or that the same person shall not, at the same time, hold two offices of profit or trust, or the like. Such provisions cover substantially the same ground as the common-law inhibition against the same person holding incompatible offices at the same time, and they also, in many cases, go further, and arbitrarily prohibit the holding of two offices which, at common law, would not be deemed to be incompatible. Hence, if the holding of two offices by the same person, at the same time, is inhibited by the Constitution or statute, a forbidden incompatibility is created similar in its effect to that of the common law, and as in the case of the latter, it is well settled by an overwhelming array of authority that the acceptance of a second office of the kind prohibited operates, ipso facto, to absolutely vacate the first office"--citing numerous authorities. See his monographic note to Attorney General v. Oakman, 126 Mich. 717, 86 N.W. 151, 86 Am.St.Rep. 583.

It is clear that the rule forbidding the holding of two offices at the same time, whether at the common law or under Constitutions and statutes, never contemplated a disability to be elected to the second office, but, on the contrary, conclusively affirms the legality and efficiency of such election. It is only the holding--that is, the occupation-- of two offices at the same time that offends public policy, and is therefore forbidden by law. As pointed out by Judge Freeman in the note referred to (page 582), it is "the acceptance and qualification for the second office" which vacates the first, not merely the acceptance; the incompatibility of the two offices depending upon the inability of the holder to consistently discharge the duties of each. The broad distinction between ineligibility to office and disqualification for holding office has been frequently noted and conclusively demonstrated by able courts. State v. Murray, 28 Wis. 96, 9 Am.Rep. 489; Privett v. Bickford, 26 Kan. 52, 40 Am.Rep. 301; Com. v. Pyle, 18 Pa. 519; State v. Van Beek, 87 Iowa, 569, 54 N.W. 525, 19 L.R.A. 622, 43 Am.St.Rep. 397, 403; State v. Huegle, 135 Iowa, 100, 112 N.W. 234.

Counsel for appellee have sought to escape the conclusion above indicated by invoking the distinction between double office holding where the first office is a federal or foreign office. But that fact does not enlarge or affect the incumbent's disqualification for holding a second office under the state. It merely prevents...