State ex rel. McIntyre v. McEachern

• Decision Date: 16 January 1936
• Docket Number: 4 Div. 861
• Citation: 231 Ala. 609,166 So. 36
• Parties: STATE ex rel. McINTYRE v. McEACHERN.
• Court: Alabama Supreme Court

166 So. 36

231 Ala. 609

STATE ex rel. McINTYRE v. McEACHERN.

4 Div. 861

Supreme Court of Alabama

January 16, 1936

Rehearing Denied March 5, 1936

Appeal from Circuit Court, Houston County; D.C. Halstead, Judge.

Quo warranto by the State, on the relation of C.C. McIntyre against C.C. McEachern. From a judgment dismissing the petition, relator appeals.

Affirmed.

T.E Buntin, of Dothan, for appellant.

Tompkins & Ramsey, of Dothan, for appellee.

FOSTER Justice.

This is a quo warranto proceeding to test the right of appellee to hold the office of "Road and Bridge Foreman" for Houston county. It is claimed that the acts of the Legislature providing for such office are unconstitutional and void, or, if valid, that he was effectually removed from it by proper action of the court of county commissioners. There are three acts which have direct application: Local Act of July 23, 1931 (Acts, p. 266); Local Act of June 27, 1935 71 (H.B. No. 533); Local Act of September 13, 1935, p. 251 (H.B. No. 1013).

The act of 1931 purports to repeal certain previous acts of 1907, 1911, and 1915, not to amend them, as appellant's counsel seem to understand. The subject-matter of those acts which is carried into that of 1931 does not serve to amend them, but merely makes that act complete as respects that matter.

Section 7 (page 267) provides that the members of the board of revenue holding under the repealed acts shall be, and function as, the court of county commissioners under its terms. This reference to those acts, though one of them had been held invalid (State ex rel. Leslie v. Bracken, 154 Ala. 151, 45 So. 841), and though it and the others were expressly repealed, is not improper; when this is done for identification, and it does not affect the validity of the act by so doing, which is complete within itself when read in the light of such matter so identified. The fact that the acts referred to are either invalid or repealed do not militate against their use for purposes of identification. Harris v. State ex rel. Williams, 228 Ala. 100, 151 So. 858, and cases there cited.

Section 9 of the act of 1931 (page 268) creates in Houston county "the office of County Road Supervisor," fixes his qualifications, term of office, the selection of successors, and the manner of removal. Other sections prescribe his duties and compensation.

The act of June, 1935, is an amendment of that of 1931. It re-enacted section 9 by changing the name of the office to read "the office of County Road Foreman," and providing that the occupant of the office of road supervisor shall hold his office until the expiration of his term under the act before amended.

Appellee was the person who had been so designated for the term expiring, as there specified, first Monday after the second Tuesday in January, 1939.

The act of June, 1935, also amended other sections of that of 1931. Then, while appellee was acting as the county road foreman, the Legislature passed the act of September 13, 1935. That did not take the form of an amendment but an original act. It created a road and bridge department for the county and a road and bridge foreman. Section 3 provided that he shall be selected by the board of revenue of the county for four years and until his successor is elected and qualified, unless removed for cause, and that the present road foreman shall be the road and bridge foreman until his office expires on said named date, "unless sooner removed for cause." That act pertained principally to the duties, etc., of the road and bridge foreman.

Appellee continued to function as road and bridge foreman under that act, notwithstanding the court of county commissioners had, on August 31, 1935, attempted to remove him by passing a motion on that day that he be discharged as of September 1, 1935. On September 28, 1935, this petition for quo warranto was filed on the relation of one of the county commissioners. The attack on the right of appellee as shown in the demurrer to his answer and then to the replication to it is that the acts of 1931 and of June, 1935, are unconstitutional as in violation of section 45, and that on August 31, 1935, appellee had been discharged and removed as road supervisor, and one Mullins was elected in his stead. The court overruled relator's demurrer to the answer to the extent that it attacked the constitutionality of the two acts in question, and sustained appellee's demurrer to that part of the replication which set out the proceedings of the court of county commissioners undertaking to discharge him.

We note, therefore, that appellant does not attack the validity of the act of September, 1935.

Appellee did not in fact vacate the office pursuant to the attempt to discharge him. But he continued to function as road and bridge foreman under that act, and was so doing when this proceeding was begun to oust him from it. If that act is valid and appellee is the person designated in section 3 of it as "the present county road foreman," it follows that he is not usurping the office of county road and bridge foreman created by its provisions.

We are not impressed with the argument that the acts of 1931 and June, 1935, violate section 45. We think the creation of the office of road supervisor is cognate to the general subject of revising the law applicable to Houston county relating to the court of county commissioners, State ex rel. Bragg v. Rogers, 107 Ala. 444, 19 So. 909, 32 L.R.A. 520; State ex rel. Leslie v. Bracken, 154 Ala. 151, 45 So. 841, and does not introduce an additional subject. There is no objection to either of them well founded upon the mere generality of the title. Harris v. State ex rel. Williams, supra; State ex rel. Leslie v. Bracken, supra.

At the time of the enactment of the act of September, 1935, appellee was discharging the duties of the office of "County Road Foreman," but the court of county commissioners had adopted a motion discharging him, and elected another person, but the latter had not taken over the office.

Our judgment is that the act meant to continue in office such officer who was of right entitled to be designated the present county road foreman, since there then existed a controversy between appellee and the new appointee. If the Legislature meant to name one or the other of them, it could have done so regardless of such controversy. But under the previous acts the term of such officer was made to expire on the first Monday after the second Tuesday in January, 1939, and the Legislature evidently meant to permit him who would be due to hold the office for that term to do so under the new act.

We are therefore remitted to the terms of the act of 1931 and June, 1935, to ascertain the intention of the Legislature in September, 1935, when it undertook to fill the newly created office. Both those acts provided for the term of the officer to continue until in January, 1939, "unless removed for cause." The motion adopted, which purported to remove appellee, did not specify that it was "for cause," or what cause, and did not show notice to him with an opportunity to be heard. The commissioners' court is sometimes acting as an administrative body with special and limited powers, and sometimes it acts somewhat in a legislative capacity, and as a court of record (section 6748) in some instances, with original and unlimited jurisdiction expressly conferred (section 6754, Code; Kirby v. Commissioners' Court, 186 Ala. 611, 65 So. 163; Edwards v. Bibb County Board of Com'rs, 193 Ala. 554, 69 So. 449; Pitts v. Boggs, 208 Ala. 194, 93 So. 906; Browning v. St. Clair County, 195 Ala. 121, 71 So. 108), and with special and limited jurisdiction when its power is not expressly enlarged. Nothing will be presumed in favor of the jurisdiction of a court with special and limited powers. When general or unlimited jurisdiction is not specially conferred on the court of county commissioners, its powers are special and limited by the grant, and its proceedings must show on their face that it acted within the limits and terms of the grant. Wightman v. Karsner, 20 Ala. 446; Trammell v. Pennington, 45 Ala. 673, 687; Ex parte Selma & Gulf R.R. Co., 46 Ala. 230, 246; Lewis v. Allred, 57 Ala. 628; Moody v. Bibb, 50 Ala. 245. See, also, Eslava v. Lepretre, 21 Ala. 504, 522, 56 Am.Dec. 266.

In this matter, the right to remove was special and limited to occur only for cause. In removing, the court could act only within powers limited by the grant. Its records must show that the removal was for cause. Without such recital they do not show a right to remove. It is clear that, when the right to remove is limited to exist only for cause, whether as prescribed by the Constitution, as in section 166, or by statute, there must be cause, and the entry on the minutes must show that the court found the fact to exist. Batson v. State, 206 Ala. 317, 89 So. 500; Martin v. Martin, 173 Ala. 106, 55 So. 632.

Section 175 enumerates certain county officers who can be removed only by impeachment, and concludes by including "all other county officers." If the bridge foreman here in question is such an officer as is referred to in section 175, Constitution, he could be removed only by impeachment. Touart v. State ex rel. Callaghan, 173 Ala. 453, 56 So. 211.

Without now entering into that question, and assuming that section 175 does not apply, he could be removed only for cause as provided by the acts of 1931 and June, 1935.

"When a statute provides for the removal of an officer for cause it contemplates notice to...