State v. Houghton

• Decision Date: 02 February 1905
• Parties: STATE EX REL. TYSON ET AL. v. HOUGHTON ET AL.
• Court: Alabama Supreme Court

38 So. 761

142 Ala. 90

STATE EX REL. TYSON ET AL. v. HOUGHTON ET AL.

Supreme Court of Alabama

February 2, 1905

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Proceeding in the nature of quo warranto by the state, on the relation of A. P. Tyson and others, against M. B. Houghton and others to oust respondents from the office of commissioners of the board of revenue of the county of Montgomery. From a judgment sustaining a demurrer to the information and petition relators appeal. Affirmed.

To the information and the petition the respondents demurred upon the following grounds: "(1) Said information and petition show that respondents are holding said office under appointment from the Governor of the state of Alabama, and that the term of said office has not expired. (1 1/2) Said general act was not passed in compliance with constitutional requirements. (2) Said information and petition show that respondents were appointed to and are holding said office under commissions from the Governor of Alabama, and that the term of said offices has not expired. (3) Said information and petition fail to show that the acts of the General Assembly and the Legislature of Alabama under which respondents were appointed to said office have been repealed. (4) Said information and petition show that the office of member of board of revenue of Montgomery county is an appointive, and not an elective, one, and that respondents are holding said office under a valid appointment to the same. (5) Said information and petition show that respondents have and are duly qualified to hold said office, and have been duly commissioned to hold the same. (7) Said information and petition show that respondents are entitled to hold said office of board of revenue of Montgomery county. (8) The title of said general election act does not include the repeal of the acts under which the members of the board of revenue of said county are made appointive." This demurrer was sustained, and, the relator declining to plead further, judgment was rendered in favor of the respondent.

J. M Chilton and O. C. Maner, for appellants.

Horace Stringfellow and Geo. M. Marks, for appellees.

DOWDELL J.

This is a proceeding on information in the nature of a quo warranto under the statute. The purpose of it is to oust the respondents from the office of commissioners of the board of revenue of the county of Montgomery. The information sets forth the facts upon which it is averred that the respondents are guilty of usurpation of a public office, and on this is based the prayer of ouster or exclusion from office. By the statement of facts it is shown that the respondents were appointed and commissioned by the Governor of the state of Alabama as commissioners of the board of revenue from Montgomery county on April 4, 1903, under the local act of the Legislature approved February 28, 1903 (Acts 1903, p 166); and that the terms for which they were appointed have not yet expired. It is also stated and averred in the information that the relators were duly elected to the offices of commissioners of the board of revenue of Montgomery county at the last general election held in November, 1904, under the general election law approved October 9, 1903 (Acts 1903, p. 438). It is charged that the local statute under which the respondents claim the right of office was repealed by the general election law of October 9th. The respondents demurred to the information, which demurrer was sustained by the city court, and, upon the relators declining to plead further, judgment was rendered in favor of the respondents. From this judgment the present appeal is prosecuted.

By an act of the Legislature approved March 11, 1875 (Acts 1874-75 p. 513), a board of revenue of Montgomery county, to consist of five members, was created; the members comprising the board to be appointed by the Governor, and to hold office for a term of four years, and until their successors were appointed and qualified. By an act approved February 9, 1877 (Acts 1876-77, p. 162), the court of county commissioners of Montgomery county was abolished, and the jurisdiction and powers of the abolished court conferred upon the board of revenue. It was provided in section 2 of this act "that all general laws hereafter enacted by the General Assembly of Alabama, in relation to the jurisdiction, powers, authority or duties of county commissioners in this state, shall apply to said board of revenue of Montgomery county, except so much of said general laws as may relate to the mode of selecting the members of said courts of county commissioners." By the act approved February 28, 1903, the county of Montgomery was divided into five revenue districts. The act provides that the board of revenue of Montgomery county shall consist of five members--three from Districts 1, 2, and 3, and one from each of Districts 4 and 5--to be appointed by the Governor; their term of office to be four years, commencing on the 4th of April, 1903, and until their successors are appointed and qualified. At the same session of the Legislature, and on October 9, 1903, the general election law (being an act entitled "An act to further regulate elections in the state of Alabama") was passed and approved. Acts 1903, p. 438. Section 24 (page 449) of this act provides, "The following officers of this state shall be elected by the qualified electors thereof." Among those named in this section are county commissioners and boards of revenue. Section 25 of this act provides that general elections throughout the state shall be held for the offices named therein; enumerating the offices, and, among them, "county solicitors in such counties where there are solicitors, whose offices are elective, county superintendents of education, coroner and county commissioners, or members of board of revenue, in each county, or courts or boards of like jurisdiction." By section 27 (page 450) of the act it is provided that one coroner, county commissioners or board of revenue, of whatever number composed, or courts or boards of like jurisdiction, one tax assessor, one tax collector, one county treasurer, one county superintendent of education, two justices of the peace, and one constable for each election precinct shall be elected on the first Tuesday after the first Monday in November, 1904, and every fourth year thereafter. The repealing clause contained in section...