State ex rel. Graddick v. Rampey

• Decision Date: 11 December 1981
• Citation: 407 So.2d 823
• Parties: STATE of Alabama, ex rel. Attorney General of Alabama, Charles A. GRADDICK v. Ronnie RAMPEY. 80-698.
• Court: Alabama Supreme Court

Page 823

407 So.2d 823

STATE of Alabama, ex rel. Attorney General of Alabama, Charles A. GRADDICK v. Ronnie RAMPEY.

80-698.

Supreme Court of Alabama.

Dec. 11, 1981.

Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., Roy S. Moore, Deputy Dist. Atty., for appellant.

Rowan S. Bone and Edward Cunningham, Gadsden, for appellee.

EMBRY, Justice.

This appeal is from a judgment dismissing a petition for quo warranto of the State of Alabama, on relation of the Attorney General, pursuant to Code 1975, § 6-6-591, seeking an order declaring vacant the office of Mayor of Glencoe, Alabama, and, further, enjoining respondent, Ronnie Rampey, from continuing to exercise the powers of that office.

Rampey, the present mayor of Glencoe, was indicted by an Etowah County grand jury on charges of second degree theft and use of his official position for personal financial gain in violation of Code 1975, § 36-25-5(a), a section of the Code of Ethics for Public Officials and Employees, and others. The State, required to elect between the two counts of the indictment, chose to proceed on the Ethics Code violation, for which Rampey was tried, convicted, and fined $5,000. Under Code 1975, § 36-25-27(a), a violation of the Code of Ethics is punishable by a fine not to exceed $10,000 or imprisonment not to exceed 10 years, or both.

Following the conviction, the Glencoe City Council requested Mayor Rampey to resign. He refused, whereupon the State filed the petition for quo warranto pursuant to Code 1975, § 6-6-591. The petition alleged that, as a result of his conviction, Rampey was usurping, intruding into and unlawfully holding the office of mayor under Const.1901, Art. IV, § 60 and Code 1975, § 36-2-1. Section 60 of the Constitution provides:

No person convicted of embezzlement of the public money, perjury, or other infamous crime, shall be eligible to the legislature, or capable of holding any office of trust or profit in this state.

In pertinent parts, Code 1975, § 36-2-1, reads:

(a) The following persons shall be ineligible to and disqualified from holding office under the authority of this state:

(1) Those who are not qualified electors, except as otherwise expressly provided;

....

(3) Those who shall have been convicted of treason, embezzlement of public funds, malfeasance in office, larceny, bribery or any other crime punishable by imprisonment in the state or federal penitentiary and those who are idiots or insane; (Emphasis added.)

Rampey's motion to dismiss the petition was granted and the trial court issued an order, the pertinent parts of which read:

This cause coming on to be heard on the oral and written arguments of both parties on motion to dismiss heretofore filed by the Defendant, the Court has carefully considered the briefs and arguments of both parties and after due deliberation holds that in accordance with the definitions, as contained in the law dictionaries and the law that the violation of the State Ethics Law is not per se an infamous crime. The Court further finds that the State Ethics Law is a hybrid creature providing a maximum fine and sentence, but not a minimum. The Alabama Criminal Code states a felony as "an offense for which a sentence to a term of imprisonment in excess of one (year) is authorized by this Title." The Ethics law is not contained in the Criminal Code, but is a separate Section and Title of the Alabama Code. Therefore, this definition is not controlling in this case and the Court must look elsewhere for an answer.

Ordinarily and historically, a felony is one of which a sentence has been imposed of more than 1 year. The jury brought in a verdict of guilty and the Court imposed a fine of $5,000.00, but no jail or prison term was imposed, therefore, the Court holds the conviction of the Defendant as a misdemeanor.

The Court, therefore, grants the Defendant's motion to dismiss these proceedings.

It is apparent that final judgment was grounded on the conclusion that a violation of § 36-25-5(a) does not constitute commission of an infamous crime. The trial court's references to felony definitions relate to the State's arguments below that all felonies are infamous crimes.

No mention is made in the judgment of the State's alternative theory of disqualification under § 36-2-1. Similarly, Rampey's brief here devotes only one sentence to the issue, dismissing § 36-2-1 as inapplicable because Rampey was eligible to hold office at the time of his election. Obviously, § 36-2-1 warranted closer scrutiny.

One convicted of a crime "punishable by imprisonment in the state or federal penitentiary" is "ineligible to and disqualified from holding office" under subsection (a)(3) of § 36-2-1. It is Rampey's view that this provision pertains only to the qualifications of a candidate for public office or of an incumbent duly elected but who has not yet assumed office.

Rampey argues there are only three possible mechanisms by which an officeholder can be removed: (1) impeachment under §§ 173 and 175 of the Alabama Constitution; (2) sentence to imprisonment under Code 1975, § 36-9-2; and (3) ineligibility or incapacity under the provisions of § 60 of the Alabama Constitution.

He does not refute that quo warranto is a proper remedy for preventing one who fails to meet the qualifications of § 60 to assume office; but rather he contends, the qualifications of one to hold an office, duly elected and qualified at the time he assumed that office, may only be tested by that section of the Constitution.

However, initially it was made clear in Finklea v. Farish, 160 Ala. 230, 49 So. 366 (1909), that the legislature has full authority to impose qualifications for public office in addition to those required by the Constitution.

Thereafter, in State ex rel. Coe v. Harrison, 217 Ala. 80, 114 So. 905 (1927), this court held that a Dothan city councilman who was eligible to that office when elected but who failed to pay a poll tax while in office thereby vacated the office because of Code 1923, § 1761, which required every city councilman to be a qualified elector of the city in which he "shall have been elected." In so holding, the court stated:

Appellee's view is that the section governs eligibility to office, but not the qualification of the councilman to continue to hold office, once he is elected and inducted into office according to law. We have been unable to accept that view.

Although § 1761 was not the same provision which we presently consider, it was construed in conjunction with Code 1923, § 2575, the precursor of Code 1975, § 36-2-1, to stand firmly for the proposition that an officeholder duly elected and inducted into office may become disqualified during his tenure, thereby vacating his office.

Such was the mandate of this court in State ex rel. Chambers v. Bates, 233 Ala. 251, 171 So. 370 (1936), where, in affirming the ouster of a Mobile city...