State v. Herzberg
| Decision Date | 31 March 1932 |
| Docket Number | 7 Div. 106. |
| Citation | 141 So. 553,224 Ala. 636 |
| Parties | STATE EX. REL. CAMP v. HERZBERG. |
| Court | Alabama Supreme Court |
Rehearing Denied May 19, 1932.
Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.
Quo warranto proceeding by the State, on the relation of R. W Camp, and R. W. Camp, individually, against L. L. Herzberg. From a judgment for respondent, the relator appeals.
Affirmed.
Alto V Lee and W. M. Rayburn, both of Gadsden, for appellant.
Dortch Allen & Dortch and M. C. Sivley, all of Gadsden, for appellee.
This is a proceeding by quo warranto to test the right of L. L. Herzberg to hold the office of "Chairman of the Board of Commissioners of the City of Gadsden," created by the act approved March 6, 1931. Gen. Acts 1931, p. 174.
Appellant challenges, first, the eligibility of respondent to hold the office.
The act creating the office declares: "No member of the Commission *** shall hold any office of profit or trust under the laws of any State of the United States." Section 13, p. 178, Gen. Acts 1931.
Admittedly, respondent, at the time he was elected, qualified and entered upon the discharge of the duties of such new office, was a member of the board of trustees of the University of Alabama, and, pending his incumbency in such new office, he has continued to serve as a member of the board of trustees of the University of Alabama.
In line with the weight of authority generally, this court has declared that statutory and constitutional provisions forbidding the holding of two offices at the same time do not render the holder of one office ineligible to election or appointment to another, nor prevent him from lawfully qualifying and entering upon the duties of the latter office; that the entering upon the duties of the latter, ipso facto, vacates the former office. Shepherd v. Sartain, 185 Ala. 439, 64 So. 57; Mann v. Darden, 171 Ala. 143, 54 So. 504; note to Attorney General v. Oakman, 86 Am. St. Rep. 582.
The statute before us seems to have been framed with reference to this rule. It follows that, if membership on the board of trustees of the University be the holding of an office of trust within the meaning of this statute, respondent's acceptance and entry upon the duties of his new office, ipso facto, without resignation, vacated the former office.
We need not, therefore, determine whether membership on the board of trustees of the University is an office of trust within the meaning of such statute. Such inquiry would go only to whether Judge Herzberg may lawfully continue to serve as a trustee of the University.
The Senate Record of the election of commissioners by the Senate of Alabama, as provided in the act, expressly discloses such election was in pursuance of said act. Entitling the office "Chairman of the City of Gadsden" instead of the true title "Chairman of the Board of Commissioners of the City of Gadsden," was a mere irregularity not invalidating such election. Such record is self-correcting.
Further questions presented go to the constitutionality of the act creating the office. They challenge the legal existence of such office.
Appellant insists the act in question is a local law as defined by section 110 of the Constitution, and therefore void for want of the published notice required by section 106. The act, both in title and body, is made applicable to cities which now or may hereafter have a population of as much as 24,000 and less than 40,000; population to be determined by the federal census from time to time. Classification of cities on a population basis for many different purposes has been common ever since the Constitution of 1901 became effective. Indeed, the Constitution itself makes such classification for some purposes. See sections 225, 228.
Whether such statute deals with the form of city government or the powers of such government, the legislative power to enact laws applicable to a class based on a population basis is the same.
That the law is applicable and intended to be applicable for the present to only one city is not the test of a local or general law. If it will become operative in all other cities as they come within the population class, it is a general law, provided the classification itself is not so arbitrary, or so hedged about with limitations, as to amount to a designation rather than a classification. While it often seems the Legislature is inclined to unduly extend and, we may say, abuse the rules of construction sanctioned by long precedent, yet a firm regard for the fundamentals of our government, one of separate and co-ordinate departments, forbids the striking down of legislative enactments, passed by legislators, the chosen representatives of the people, and sworn as we are to maintain the Constitution, unless such acts are clearly in violation of the Constitution. We cannot say, therefore, that a population basis of 24,000 to 40,000 may not furnish a rational basis for a classification of city government in the matter of its governing body and the powers conferred. The wisdom and good policy of the particular form of municipal government is a legislative, not a judicial question. State ex. rel. Gunter et al. v. Thompson et al., 193 Ala. 561, 69 So. 461; Walden v. City of Montgomery, 214 Ala. 409, 108 So. 231; State ex rel. Crenshaw et al. v. Joseph et al., 175 Ala. 579, 57 So. 942, Ann. Cas. 1914D, 248; State ex rel. George B. Ward v. Eugene B. Henry (Ala. Sup.) 139 So. 278; State ex rel. J. B. Russum v. County Commission of Jefferson County (Ala. Sup.) 139 So. 243; Hasty, Judge v. Marengo County Bank, 204 Ala. 229, 86 So. 37; State ex rel. Adams v. McLellan, 202 Ala. 41, 79 So. 379; State ex rel. Montgomery v. Merrill, 218 Ala. 149, 117 So. 473; Thomas, Clerk Circuit Court, v. State ex rel. Armstrong, 200 Ala. 661, 77 So. 35; Commonwealth v. Moir, 199 Pa. 534, 49 A. 351, 53 L. R. A. 837, 85 Am. St. Rep. 801; Ladd v. Holmes, 40 Or. 167, 66 P. 714, 91 Am. St. Rep. 457; Wheeler v. Philadelphia, 77 Pa. 338, 349, and 351; Commonwealth v. Wert, 282 Pa. 575, 128 A. 484-486.
The point is further made that the act cannot apply to other cities coming within the population classification...
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...a second office [of profit] operates, ipso facto, to absolutely vacate the first office [of profit].") (citing State ex rel. Camp v. Herzberg, 224 Ala. 636, 141 So. 553 (1932)). Section 280, however, deals with the exercise of power, not merely the label "office." Interpreting § 280, this C......
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