State v. Foster

• Citation: 30 So. 477,130 Ala. 154
• Parties: STATE EX REL. LITTLE ET AL. v. FOSTER.
• Decision Date: 29 June 1901
• Court: Alabama Supreme Court

30 So. 477

130 Ala. 154

STATE EX REL. LITTLE ET AL. v. FOSTER.

Supreme Court of Alabama

June 29, 1901

Appeal from circuit court, Tuscaloosa county; S. H. Sprott, Judge.

Quo warranto by the state, on the relation of John Little and others, against Henry B. Foster. Judgment for defendant, and the relators appeal. Reversed.

This was a proceeding by information in the nature of quo warranto, and sought to have said Foster adjudged guilty of usurping and unlawfully holding and exercising the duties of the office of a member of the board of trustees of the university, and prayed that he be excluded from said office.

Van De Graaff & Verner and Daniel Collier, for appellants.

Foster & Oliver, E. L. Russell, and A. B. McEachin, for appellee.

TYSON J.

This is an information in the nature of a quo warranto brought on the relation of appellants against the defendant for the purpose of having adjudged the latter's right and title to the office of trustee of the University of Alabama. The facts are agreed upon. They appear to be these: The relator was appointed by the governor, with the advice and consent of the senate, on the 21st day of February, 1893, trustee to fill a vacancy caused by the resignation of James E. Webb for the term ending March 1, 1894. On the 1st of March, 1894, he was reappointed by the governor during a recess of the senate but did not qualify, and on December 1, 1894, the governor sent to the senate the following message: "I respectfully submit for your advice and consent the following nominations: For trustee of the University of Alabama, of the third class, for term ending March 1st, 1900, R. B. Rhett, of the 8th congressional district; John Little, of the 6th congressional district. These nominations are made to fill appointments made during the recess." This nomination was confirmed by the senate, and the relator entered upon the discharge of his duties after taking the oath of office, which he continued to discharge until the 14th day of June, 1900, when the defendant was appointed by the governor, without the advice and consent of the senate (the general assembly not being in session), to fill what the governor assumed to be a vacancy in the office, as successor of the relator. The defendant on the day of his appointment qualified and entered upon the discharge of the duties of the office, and was exercising the functions and duties thereof when this proceeding was instituted.

Section 9, art. 13, of the constitution, after providing for the management and control of the university by a board of trustees, provides for the appointment of the trustees as follows: "Said trustees shall be appointed by the governor, by and with the advice and consent of the senate and shall hold office for a term of six years, and until their successors shall be appointed and qualified. After the first appointment [the] board shall be divided into three classes, as nearly equal as may be. The seats of the first class shall be vacated at the expiration of two years, and those of the second class in four years, and those of the third class at the end of six years, from the date of appointment, so that one third may be chosen biennially." At the first session of the general assembly after the adoption of the constitution, the act of March 1, 1876 (Acts 1875-76, p. 268), was passed, which now with slight modifications, constitutes section 3667 et seq. of the Code. One of the purposes of this act was to effectuate and make operative that part of this constitutional provision requiring the board of trustees to be classified. Under it certain persons, as trustees, therein named, were constituted a body corporate, under the name and style of "The Board of Trustees of the University of Alabama." Each of the congressional districts (there being eight of them at that date) were represented on the board by one person, except the Sixth, which had two trustees. These trustees were divided into three classes, as follows: The trustees from the First, Fourth, and the one determined by lot from the Sixth, constituted the first class; those from the Second, Fifth, and Seventh, the second class; and those from the Third and Eighth, and one from the Sixth, the third class. After the creation of the Ninth congressional district the trustee for that one was placed in the second class. The purpose of the requirement in the constitution of the classification of the board into three classes, and that the first appointees shall vacate their seats, respectively, at the expiration of two, four, and six years from the date of their appointment, is disclosed. To use the language employed, it was "that one-third may be chosen biennially." At the expiration of two years the successor in office of that class was entitled to hold for six years, and likewise was the successor in the second and third classes at the expiration of four and six years respectively. By this process the members of each succeeding board were given a term of six years as prescribed by the phrase immediately preceding the one we are now considering, and the system of selecting one-third of the members of the board biennially was perfected. This same process was employed in the federal constitution with respect to the classification of the first United States senators elected. Section 3, art. 1, Const. U.S. It has never been doubted that the terms of the succeeding senators were each for six years, without reference to whether they were of the first, second, or third class. Nor has it ever been held, or, for that matter, hinted, that the system has not accomplished the purposes for which it was intended. And, indeed, the result sought to be accomplished, of selecting one-third of the members of the board biennially, is inevitable, except only in case of an irreconcilable disagreement between the senate and the governor as to who is a fit and proper person to fill the office,-a contingency not likely to arise; but should it happen there would simply be, unfortunately, a casus omissus. As under the federal constitution, should the general assembly refuse or fail to elect a senator, the state would be short one represenative in congress,-a contingency which has happened, but which has not been regarded as being within the competency of the legislative branch of the government or of the courts to remedy. It is of no consequence that the system providing for the classification of the board of trustees is found in a constitution which must be construed as a limitation upon the powers of the legislature, and the system providing for the classification of the first senators elected is found in a constitution which must be construed as a grant of power to congress, for the...