State v. Blake

• Decision Date: 02 June 1932
• Docket Number: 8 Div. 377.
• Citation: 225 Ala. 124,142 So. 418
• Parties: STATE EX REL. MOORE v. BLAKE.
• Court: Alabama Supreme Court

142 So. 418

225 Ala. 124

STATE EX REL. MOORE v. BLAKE.

8 Div. 377.

Supreme Court of Alabama

June 2, 1932

Appeal from Circuit Court, Colbert County; J. Fred Johnson, Jr. Judge.

Quo warranto proceeding by the State of Alabama, on the relation of Herbert Moore, against J. H. Blake. From a judgment sustaining a demurrer to the petition and dismissing it relator appeals.

Affirmed.

C. P Almon, of Florence, and Travis Williams, of Russellville, for appellant.

Andrews, Peach & Almon, of Sheffield, for appellee.

BOULDIN J.

Proceeding by quo warranto.

The relator, Herbert Moore, appellant here, was elected and qualified as sheriff of Colbert county. Pending his incumbency he was convicted in the District Court of the United States of the offense of conspiracy to violate the Federal Prohibition Law, and sentenced to imprisonment in the federal penitentiary for a term of two years. Pending an appeal to the United States Circuit Court of Appeals, and while relator was at large on an appearance bond, the Governor declared the office vacant and appointed the respondent, J. H. Blake, to such vacancy. Relator relinquished the office to the appointee under protest, and by this proceeding challenges the authority of the Governor to declare the office vacant and make an appointment to fill such vacancy.

"When any person, holding any office or place under the authority of this state, is sentenced by any court of the United States, of this state, or any state, to imprisonment in the penitentiary, or hard labor for the county, his office or place is vacated from the time of the sentence; and if the judgment is reversed, he must be restored; but if pardoned, he must not." Section 2699, Code. See, also, Code, § 5294.

These statutes date back to the Code of 1852, without change affecting the inquiry now presented. See parenthetical Code sections.

The power to make an appointment to fill the vacancy declared by this statute upon conviction and sentence, with the right of restoration in case of reversal of the judgment of conviction, was declared in Ex parte Diggs, 50 Ala. 78.

Appellant insists that a sheriff can now be removed from office only by impeachment in the manner and for causes provided by the Constitution, sections 173 and 174. Nolen v. State ex rel. Moore, 118 Ala. 154, 24 So. 251; Williams, Judge, v. Schwarz, 197 Ala. 40, 72 So. 330, Ann. cas. 1918D, 869; Petree v. McMurray, 210 Ala. 639, 98 So. 782.

In effect appellant contends that Code, § 2699, is violative of the constitutional right of removal only by impeachment. This court held otherwise in Stone, County Treas., v. State ex rel. Freeland, 213 Ala. 130, 104 So. 894.

But the point is made that the Stone Case is rested upon section 60 of the Constitution, which reads: "No person convicted of embezzlement of the public money, bribery, perjury, or other infamous crime, shall be eligible to the legislature, or capable of holding any office of trust or profit in this state."

Appellant insists the conviction in his case was not for an "infamous crime" within the meaning of section 60, supra.

The progenitor of this section is found in section 20, article 4 of the Constitution of 1868, defining who shall be eligible to election to the General Assembly, and included persons "convicted of bribery, forgery, perjury or other high crime or misdemeanor, which may be by law declared to disqualify him."

The section, enlarged to include all offices of profit or trust, has always appeared in the article relating to the legislative department, and not in connection with the provisions for impeachment.

We find no necessity to define "infamous crime" within the meaning of section 60, for reasons now to be stated.

That section has the force of positive law declaring a fixed policy that persons therein named are ineligible to hold office in Alabama. The peace and dignity of the state as dependent upon the character and morale of her public officials is the...