State v. Burke

• Decision Date: 21 December 1911
• Citation: 175 Ala. 561,57 So. 870
• Parties: STATE EX REL. VANDIVER v. BURKE.
• Court: Alabama Supreme Court

57 So. 870

175 Ala. 561

STATE EX REL. VANDIVER v. BURKE.

Supreme Court of Alabama

December 21, 1911

Rehearing Denied Feb. 17, 1912.

Appeal from Circuit Court, Cullman County; D. W. Speake, Judge.

Information by the State, in the nature of quo warranto, on relation of W. T. Vandiver, directed against R. L. Burke. From a judgment sustaining a demurrer to the information, relator appeals. Affirmed.

J. B Brown, for appellant.

George H. Parker and Eyster & Eyster, for appellee.

MAYFIELD J.

This is a statutory information, in the nature of quo warranto brought in the name of the state, on the relation of W. T Vandiver, against R.I. Burke, to inquire into the right and title by which the latter holds or exercises the office and functions of judge of the county court of Cullman. The proceeding is expressly authorized by chapter 128, § 5453 et seq., of the Code of 1907.

The material allegation, together with the prayer of the information, is as follows: "That R.I. Burke, who is not 'learned in the law' as required by section 154 of the Constitution of Alabama, is holding and exercising the powers and functions, and receiving the emoluments of the office of judge of the county court of Cullman county, and plaintiffs aver that the said R.I. Burke usurps, intrudes into, and unlawfully holds or exercises the powers and functions of said office. The plaintiffs therefore pray that summons issue as required by law, directed to the said R.I. Burke, commanding him to appear before the honorable, the circuit court of Cullman county, and to show cause by what right, warrant, or authority he is holding and exercising the functions and powers of said office of judge of the county court of Cullman county."

The respondent first appeared specially, and moved the court to quash the information and proceedings, on the grounds that they were not instituted by the Attorney General, but on the relation of one W. T. Vandiver, who was without authority to institute the same, which motion was heard, and overruled, by the judge to whom it was addressed. Respondent also demurred to the information, assigning the same grounds set forth in his motion to quash, and additional grounds, among which were the following: "Because the allegation therein that defendant 'usurps, intrudes into, and unlawfully holds or exercises the powers and functions of said office,' is a conclusion of the pleader, and not a statement of facts. Because the judge of probate of Cullman county is made the judge of said court, and said petition does not allege that the defendant is not judge of the probate court of Cullman county. Because this court judicially knows that this defendant, R.I. Burke, is judge of probate of Cullman county, and that judges of the probate court were expressly exempted and excepted from the qualifications prescribed by section 154 of the Constitution that judges 'shall be learned in the law.' Said petition does not show that this defendant is holding and exercising the powers and functions and receiving emoluments of the office of judge of the county court of Cullman county, otherwise than as a duty devolving upon him by virtue of his occupancy of and holding the office of judge of probate of Cullman county. Said petition does not aver that said Robert I. Burke is not the judge of probate of Cullman county. Because the functions and powers exercised by the judge of the county court of Cullman county is not an independent jurisdiction, but attaches to and is a part of the duty devolving upon the judge of probate, who is excepted and exempted by section 154 of the Constitution. Because said county court of Cullman county was existing and the duties of the judge performed by the judge of probate at the time of the adoption of the Constitution, and the adoption of the Constitution was a recognition of the right of the probate judge to exercise the powers and functions as presiding officer of the county court, and the judge of probate or judge of probate court was excepted and exempted from the provisions of said section 154."

The judge to whom the information was addressed sustained the respondent's demurrer, and the relator declined to plead further, and suffered final judgment; and from such judgment the relator prosecutes this appeal.

The proceeding in question, in the name of the relator, is expressly authorized by the statutes and Code procedure to which we have above referred; and the appeal to this court is likewise authorized by sections 5470 et seq. of the Code. It is distinguishable from that of mandamus to a judge to control his judicial action, which was considered and decided in the cases of State ex rel. Almon v. Burke, 160 Ala. 163, 48 So. 1035, and In re Stephenson, 113 Ala. 85, 21 So. 210. In this case the proceeding is in the nature of quo warranto, and is by statute explicitly authorized to be instituted, in the name of the state, on the relation of "any person giving security for costs," whereas there is no such authorization as to mandamus proceedings against a judge. So the important and material question presented by the information and the demurrer thereto was, Can the respondent, who is probate judge of Cullman county, and is "not learned in the law," constitutionally exercise or discharge the judicial functions imposed, or attempted to be imposed, by statute, upon probate judges, as to the county court of Cullman?

It is contended by the relator that the county court of Cullman is "a court of record" within the meaning of section 154 of the Constitution, and that respondent cannot therefore constitutionally exercise, perform, or discharge the duties of such office. On the other hand, the contention of the respondent probate judge is set forth in his special grounds of demurrer. Section 154 of the Constitution of Alabama of 1901 reads as follows: "Chancellors and judges of all courts of record, shall have been citizens of the United States and of this state for five years next preceding their election or appointment, and shall be not less than twenty-five years of age, and, except judges of probate courts, shall be learned in the law." The corresponding section of the Constitution of 1875 reads as follows: "Sec. 14. The judges of the Supreme Court, circuit courts, and chancellors and the judges of city courts shall have been citizens of the United States and of this state for five years next preceding their election or appointment, and shall be not less than twenty-five years of age, and learned in the law." Under this constitutional provision as it was written in the Constitution of 1875, it was certain--beyond doubt--that it was not a constitutional requisite that the judge of a county court or the person exercising the powers and discharging the functions conferred upon such courts, whether a probate judge or not, should be learned in the law. Did the Constitution of 1901 work such a change as to require the officer or person discharging such functions to be "learned in the law," if such county court be, or is made, a "court of record," and the officer or person discharging such functions be the probate judge of such county? This is the serious, the important, question propounded to the circuit judge below, and to us by this appeal.

Section 139 of the Constitution which names or prescribes the tribunals in which the judicial power of the state shall be vested names the Senate sitting as a court of impeachment, the Supreme Court, and circuit, chancery, probate, and such inferior courts as the Legislature may establish; and concludes by adding the phrase, " and such persons as may be by law invested with powers of a judicial nature," with certain conditions as to the establishment of such inferior courts, not here important to be discussed. The quoted and italicized provision of section 139 of the Constitution first appeared in the Constitution of 1875. Since the Constitution of 1875, the Legislature has had this express authority for conferring certain parts of the judicial power of the state--theretofore conferred or conferable only upon the tribunals or courts mentioned or provided for in the previous Constitutions of 1819, 1861, and 1865--upon certain designated persons. This change of the Constitution was no doubt suggested, and rendered proper and appropriate, if not necessary, by the first penal Code of the state, which was adopted by the Legislature in the year 1866. As is well known, this Code provided for a new system of criminal procedure in this state. Such was the undoubted purpose of the act providing for the codification, and also of the act subsequently adopting the Penal Code. See Penal Code 1866.

In the case of Balkum v. State, 40 Ala. 671, 675, this court spoke as follows: "A constitutional question is presented in this case, viz., that the Legislature had not the power to establish a county court in the several counties in this state, and make the judges of probate ex officio judges of said courts, and that the county courts thus established, being independent courts of inferior jurisdiction, can be presided over by none other than separate judges elected for that purpose. This question has been in effect decided at the present term of this court. A county court of different powers and jurisdiction from the county courts as now existing was established by the Legislature for the county of Montgomery on the 24th of February, 1860; and the judge of probate in said county was made ex officio the judge of said county court. Acts 1859-60, p. 564. On appeal to this court from a judgment rendered by the said county court, the question raised in the present case was presented, and we then held as follows: 'No one questions the power of the General Assembly to establish by law inferior courts with...