State ex rel. Bland v. St. John

• Decision Date: 26 March 1943
• Docket Number: 6 Div. 122.
• Citation: 244 Ala. 269,13 So.2d 161
• Parties: STATE ex rel. BLAND et al. v. ST. JOHN.
• Court: Alabama Supreme Court

13 So.2d 161

244 Ala. 269

STATE ex rel. BLAND et al. v. ST. JOHN.

6 Div. 122.

Supreme Court of Alabama

March 26, 1943

Rehearing Denied May 13, 1943.

Horace C. Wilkinson, of Birmingham, and T.B. Ward, of Tuscaloosa for appellants.

Norman W. Harris, of Decatur, and Finis E. St John, Jr., of Cullman, for appellee.

THOMAS Justice.

This is a quo warranto proceeding under Code 1940, Chapter 33, Title 7, Sections

1133-1146, to oust the temporary acting solicitor of Cullman County, appointed by Governor Dixon on December 22, 1942. Petitioner seeks to establish his right to this office. He was appointed by Governor Sparks on January 25, 1943, to fill the vacancy which occurred when Mr. Joe V. Knight, the duly elected and qualified solicitor (after taking the oath of office), certified in writing to Governor Sparks that he desired to avail himself of the provisions of the Act of November 20, 1942, and requested the Governor to appoint some person as temporary acting solicitor during his absence in the military service of the United States of America.

The question for decision is which of the two Governors had the right of appointment under the law and the Act of the Legislature approved on November 20, 1942. The information originally filed and as amended was sufficient in law to present for decision the important questions necessary for determination of the title to the instant office when raised by demurrer. Baker v. State, 222 Ala. 467, 133 So 291; Byrum v. Pharo, 240 Ala. 564, 200 So. 622.

To a full understanding of the averred facts, counsel has correctly stated the same as follows:

"On May 6, 1942, Knight was inducted into the military service. May 11, 1942 Knight was nominated County Solicitor of Cullman County, Alabama.

"Nov. 3, 1942, Knight was elected County Solicitor of Cullman County, Alabama, and his election duly declared as provided by law," for the term of four years beginning on the first Monday after the second Tuesday in January, 1943.

December 21, 1942, a member of the Draft Board certified in writing to Governor Dixon that Knight was inducted into the military service May 6, 1942, and was still in the service.

December 22, 1942, Governor Dixon appointed Mr. St. John temporary acting county solicitor of Cullman County, Alabama. This appointment was to take effect on the first Monday after the second Tuesday in January, 1943, "the tenure of your holding this position shall be that set out in Section 5 of Act No. 2, Special Session of the Legislature of Alabama, 1942, approved by me as Governor on November 20, 1942."

December 28, 1942, Governor Dixon issued Mr. St. John a commission as temporary acting county solicitor for Cullman County, Alabama. "To have and to hold the said office, together with all the Rights, Powers and Emoluments to the same belonging or in anywise lawfully appertaining, during the term described by the Constitution and Laws of the State of Alabama, if you shall so long demean yourself well."

January 18, 1943, Knight took the oath of office required by law of such official and the dueling oath and qualified as county solicitor of Cullman County, Alabama. On the same date he sent to Governor Sparks a communication stating that he desired to avail himself of the special Act of 1942, approved November 20, 1942, and asked the Governor to appoint some person as temporary acting officer during his absence in the military service and further that "this notice is intended as a compliance with said Acts of 1942, Special Session."

January 25, 1943, Governor Sparks appointed Earney Bland temporary acting county solicitor of Cullman County, Alabama, reciting that Knight had been duly elected and qualified and had advised him in writing of his entry into the military service, and of his desire to avail himself of the privileges and immunities provided for by the said special act.

January 25, 1943, Governor Sparks issued a commission to Earney Bland as temporary acting county solicitor of Cullman County, Alabama.

The office of the county solicitor for Cullman County, Alabama, is provided for by Local Act 1935, p. 196, which reads as follows: "The County Solicitor * * * shall hold office for a term of four years beginning on the first Monday after the second Tuesday in January, 1939, and until his successor is elected and qualified." Section 1.

We take judicial knowledge of the fact that in compliance with said act an election was held in November, 1938, and Mr. Kinney was elected to such office. Mr. H.H. Kinney resigned and Mr. F.E. St. John, Sr., was appointed for the unexpired term and was commissioned December 2, 1940, for the term expiring on January 18, 1943. It is apparent that Mr. St. John's term of office had not expired when Governor Dixon attempted to appoint him as temporary acting solicitor in place of Mr. Joe V. Knight, who was elected in November, 1942, for a four year term. It follows that there was no vacancy in the office when such attempted appointment was made. No vacancy could occur until there was a failure of qualification of the duly elected official, Mr. Knight, within the time required by law. Therefore, the case of Oberhaus v. State ex rel. McNamara, 173 Ala. 483, 55 So. 898, is without application, since the term in that case expired before the appointment and beginning of the new term.

Under the impending world crisis and the participation of the United States in this war of nations, the Legislature of Alabama apprehended that state, county and municipal officials would be called into "the military service of the United States," and that such service may or would interfere with the orderly conduct of the business of the state, counties or municipalities, and passed three acts of like tenor, with full appreciation of the effect of the Constitution of Alabama of 1901, § 280, which provide for the appointment, authority and compensation of temporary acting officials during the absence of the official in the respective offices indicated in the several acts. Gen.Acts, Spec.Sess.1942, Act. No. 1 (State officials and employes), Act No. 2 (County officials), Act No. 8 (Municipal officials).

The Act relating to county officials appears in the statement of the reporter. It will be observed that Sections 1 and 3 of the said act are as follows:

"Section 1. The office of any official of any county of the State of Alabama, who has heretofore entered, or who shall hereafter enter the military service of the United States at a time when there is an existing state of war between the United States of America and any other country, shall not be deemed vacated by reason of such service, nor shall such military service be deemed acceptance of, or the holding of, an office of profit under the United States within the purview of Section 280 of the Alabama Constitution of 1901."

"Section 3. That officer or board who now has the power to appoint to vacancies in such office upon being advised in writing by an elected or appointed official of any county in the State of Alabama that such official has or will, enter the military service of the United States, and desires to avail himself of the privileges and immunity granted by this act, or upon failure of such official to so advise the appointing authority for a period of thirty days after his entry into the military service, shall have the power subject to the application and limitation of any Civil Service or Merit law under which any said County may be operating to appoint a temporary acting official who shall be clothed with all of the powers, privileges, and duties regularly exercised by the official in whose place he is acting. Such temporary acting official shall receive the same compensation, payable in the same manner and from the same source as the official in whose place he is serving." [Italics supplied.]

Section 5 is to the effect that the tenure of any temporary acting official shall be during the absence of the regularly elected or appointed official "while in military service and until the expiration of thirty days from the date that notice in writing is given to the appointing power by the said regularly elected or appointed official of his intention to return and resume the duties of his office, at which time, the powers, privileges, and duties of such temporary acting official shall automatically end."

Sections 6 and 7 are made to apply to all officials heretofore or hereafter elected at any general election, or appointed, whether or not they have entered upon the discharge of their duties; that nothing contained in the act shall be deemed to extend the tenure of such duly elected or appointed official beyond the time for which he has been elected or appointed, nor shall he be entitled to compensation during the time he is absent "in the military service of the United States," nor shall any such "official be clothed with any of the powers or authority of his office while absent in the military service."

Thus the legislature recognized the provisions of the Alabama Constitution of 1901, Section 280, to the effect that no person holding an office of profit under the United States, except the class indicated, shall, during his continuance in such office, hold an 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 the class indicated.

Section 5 of the act makes provision as to "The tenure of any temporary acting official" and preserves his rights in the premises in the manner dealt with as to the official in office whose place he has taken under the provisions of the law. The act further provides that it shall be effective after passage and approval by the Governor. The Governor approved the act on November 20,...