State v. Black

• Decision Date: 21 January 1932
• Docket Number: 4 Div. 589.
• Citation: 139 So. 431,224 Ala. 200
• Parties: STATE EX REL. AUSTIN v. BLACK.
• Court: Alabama Supreme Court

139 So. 431

224 Ala. 200

STATE EX REL. AUSTIN v. BLACK.

4 Div. 589.

Supreme Court of Alabama

January 21, 1932

Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.

Quo warranto by the State of Alabama, on the relation of J. G Austin, and J. G. Austin individually, against M. L. Black. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

E. C Boswell and W. O. Mulkey, both of Geneva, for appellant.

A. A Smith, of Hartford, and Sollie & Sollie, of Ozark, for appellee.

THOMAS J.

The suit is quo warranto to test the right to office of the county superintendent of education. And this presents for decision, the validity of the recent Act of the Legislature approved February 5, 1931 (Loc. Laws 1931, p. 5) and exhibited, and its effect upon the alleged previous appointment of petitioner as superintendent by the county board.

The demurrer to the amended information was sustained and nonsuit was taken, review of said rulings sought of the final judgment against the state and relator as plaintiffs, and judgment in behalf of the respondent against the relator Austin and the sureties on his bond for costs.

The status of an incumbent in the office of county superintendent of education has been considered by this court, as affecting his removal therefrom, in Petree v. McMurray, 210 Ala. 639, 98 So. 782; and the change of his compensation during the term in McMurray v. County Board of Education, 216 Ala. 144, 112 So. 644. Neither of these questions is now presented. Appellant does not insist that the act in question is in conflict with section 175 or section 281 of the Constitution. It is upon the validity of the act of 1931 that the decision rests.

It has been frequently announced that the court presumes such act of the Legislature is constitutional, unless it appears to the contrary beyond a reasonable doubt, when the whole statute is looked to for its meaning and under the existing law. Sadler v. Langham, 34 Ala. 311; Quartlebaum v. State, 79 Ala. 1; State ex rel. Wilkinson v. Lane, 181 Ala. 646, 651, 62 So. 31; Smith v. Stiles, Probate Judge, 195 Ala. 107, 110, 70 So. 905; Board of Revenue v. McDanal, 213 Ala. 349, 105 So. 191.

When the act in question was passed, the county superintendents of education where appointed by the county boards of education, and took office on the next succeeding July 1st (School Code 1927, § 138) for a term of two to four years, as was determined and fixed by the board. And section 89 of the School Code provided that members of the county board of education be elected at general elections and for a term of six years. The general statutes provided for the election of county officials (sections 414, 417, Code) at general elections to be held on the first Tuesday after the first Monday in November, 1908, and every fourth year thereafter. That is to say, we have general and quasi general elections on the first Tuesday after the first Monday in November, and that the instant election was held under the provisions for the general elections in November of that year and of the Act of February 5, 1931. Local Laws, p. 5.

Counsel for appellant make no point on the sufficiency of the notice given of the proposed local law to be presented to the Legislature pursuant to the terms of section 106 of the Constitution, but insist there was an essential and material departure (in substance) from such notice by the enactment that was passed. The question of a departure vel non by the act from the notice given is held to be for the court. Wallace v. Board of Revenue of Jefferson County, 140 Ala. 491, 37 So. 321; Jacobs v. State, 144 Ala. 98, 40 So. 572.

It is declared that the Legislature has the power to change and form the details of local legislation as not to depart from its essential and material substance, as he declared in the notice. First National Bank v. Smith, 217 Ala. 482, 485, 117 So. 38; State v. Allen, 219 Ala. 590, 123 So. 36; Polytinsky v. Johnston, 211 Ala. 99, 99 So. 839.

When the act is considered with the notice given, we are not of opinion that there was a departure in substance, by the act from the notice given, (1) as to the term of office, or (2) in designation of the agency and official to call the election and give the notice, or (3) as to the provision for defraying the expense of such special election "out of the general funds of said County," as is provided in the appropriation statutes for special elections. Sections 403, 412, 509, 522, 529, 535, 541, 609, 617 and 684, Code of 1928.

The expenses provided for and as incident to holding the election (providing for the payment thereof in the act) were not such departure from the published notice given in essential, material, and substantial effect and result as was the departure from the notice. In Roper v. State ex rel. Day, 210 Ala. 440, 98 So. 286, the whole road building scheme and expenditures therefor were out of the county treasury.

It may be well to advert to the term of office fixed in the act and to say that it is quadrennial in the sense that after expiration of the first term as provided that the term is for four years, unless removed for good cause. The last-named provision was not a departure in material substance in contemplation of the provisions of the Constitution as to notice required for the introduction of a local bill, and from the notice that was given. It was not the change of the term of office or that of the first or present incumbent therein from four years as indicated by the notice; it was for four years in the act, and not that for eight years, as is suggested by counsel.

The reasonable interpretation of the act and its legislative intent in the context and use of the words, "who shall assume the duties of his office July 1, 1931, and shall hold office until his successor is elected and qualified, at the General Election to be held, on the Second Tuesday in November 1934, at which time his successor in office shall be elected *** for a term of four years, unless removed for good cause, nominations for this office shall be made in the Primary Elections as provided for the other County offices," (Italics supplied) meant at the election to be held in November, 1934; the words "Second Tuesday" employed are self-correcting, and mean at the general election held on Tuesday after the first Monday in November; the time prescribed for the holding of general elections throughout the State. Code, § 413, et seq.

The whole tenor of the act was for a four-year term of the office and the incumbent in that office, "unless removed for good cause," and according to the varying calendar. Oberhaus v. State ex rel. McNamara, 173 Ala. 483, 55 So. 989; State ex rel. Covington v. Thompson, 142 Ala. 98, 38 So. 679. This last provision, under the law, had a definite meaning and procedure for and to such removal under the Constitution. Petree v. McMurray, 210 Ala. 639, 98 So. 782.

It is further insisted that under the averments of the petition, that under the provisions of the act no definite notice of the election was provided and given. As to this it is averred in the petition:

"(b) That following the approval of said act, that P. C. Black, Judge of Probate, Geneva County, Alabama, called the election provided for therein, and that such election was held on Tuesday, April 21st, 1931, at which election the said M. L. Black received the highest number of votes for said office, and that on April 24th, 1931, the Election Board of the County of Geneva, to-wit,-the Sheriff, Clerk of Circuit Court and Judge of Probate, canvassed the returns and declared M. L. Black duly, regularly and legally elected.

"(c) That on the 28th of May, 1931, the said M. L. Black executed bond in the sum of $2,000.00 payable and conditioned as required by law, in case of County Superintendent of Education, which bond was duly approved:

"(d) That on the 1st of July, 1931, the said M. L. Black took the oath of office as County Superintendent of Education, and the duelling oath:"

The provision for the call that is made by the act is "That immediately after the passage of this Act, a special election shall be called, by the Probate Judge of Geneva County, and held in Geneva County, Alabama, the expenses thereof to be paid out of the General Funds of said County for the purpose of electing a County Superintendent of Education for said County, by the qualified electors thereof," etc.

The failure of the act to provide the details or procedure of the holding, the canvassing of returns, and declaration of the result thereof, is supplied and found in article 20, chapter 19, § 529, et seq. of the Code, as we shall show later.

The provision in the act that the special election shall be called immediately after the passage and approval of the same did not prevent other provisions of the statute from having application when due call for the special election was made and published by the judge of probate and pursuant to the act to the electorate to be affected.

The amended information assails the act as being violative of section 190 of the Constitution, as to regulation and government of election laws throughout the state, and as to providing for the manner of holding elections, and of the ascertainment of the result of the same. While uniformity is demanded, the lack of uniformity that is not...