State v. Justice
| Decision Date | 17 June 1917 |
| Docket Number | 5 Div. 663 |
| Citation | 200 Ala. 483,76 So. 425 |
| Parties | STATE ex rel. SMITH et al. v. JUSTICE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Elmore County; Leon McCord, Judge.
Information by the State, on relation of L.C. Smith and others, against Dr. C.S. Justice. Judgment for respondent, and plaintiffs appeal. Affirmed.
Frank W. Lull, of Wetumpka, for appellants.
Holley & Morrow and Smoot & Mullins, all of Wetumpka, for appellee.
Appellants filed an information against appellee, alleging that appellee was unlawfully usurping the office of "all-time" health officer for Elmore county, and seeking to oust him from such office.
It is disclosed by the answer of respondent, Dr. Justice, that on November 15, 1915, the court of county commissioners of said county declared, by due order entered on the minutes of such court, that it was wise to provide for a county health officer who should be required "to devote all his time to the duties of the office and health of the county" (Gen.Acts 1915, pp. 782, 786, subds. II and III); that thereafter, on the 16th day of November, at a meeting of the county board of health, called and assembled in conformity with the provisions of subdivision II of said act, appellee was elected such health officer; that, acting in accordance with the instructions of the board of health, the board's secretary notified the court of county commissioners, giving the name and address of the officer so elected; and that appellee duly qualified as such officer-elect by filing his required oath of office and his official bond, and thereupon on, to wit, the 29th of January, 1916, entered upon the discharge of his official duties.
Relators filed replication to the effect, among other things, that the court of county commissioners, at a regular term thereof held at the courthouse in the town of Wetumpka on February 13 1917, adopted a resolution "rescinding the former action of the court putting in force the office of all-time health officer for Elmore county, and discontinued and repealed the previous action of the court of county commissioners of Elmore county authorizing the existence of said office."
Demurrer was sustained to this replication, on the ground that the court of county commissioners had no authority to revoke and rescind the order made and entered by said court, putting into operation in Elmore county the provisions of the act of September 25, 1915. Issue was joined on the answer of appellee, and from the judgment rendered in favor of the respondent this appeal is taken.
The one question presented is the right of the court of county commissioners to revoke the order made, declaring the necessity for an all-time health officer and putting into operation, in said county, the provisions of the statute in question. It may be said that there is no constitutional objection to the abolition of offices created by statute, nor any protection extended to salaries attaching to such offices. 4 Mayf.Dig. 336; State ex rel. Thomas v Gunter, 170 Ala. 165, 54 So. 283. It has been held that whenever the people, in convention or through legislation, clothe any department of the government, or any of its boards or officers or municipalities, with powers at discretion to create an office, they also (in the absence of a declaration of purpose to the contrary) invest such official or body with like power to abolish the office. Benford v. Gibson, 15 Ala. 521; Ex parte Screws, 49 Ala. 57; Ex parte Lusk, 82 Ala. 519, 2 So. 140; Oldham v. Mayer, 102 Ala. 357, 14 So. 793; Morrow v. Earle, 122 Ala. 130, 27 So. 327; Touart v. State ex rel. Callaghan, 173 Ala. 453, 56 So. 211; Perkins v. Corbin, 45 Ala. 103, 6 Am.Rep. 698; Ex parte Lambert, 52 Ala. 79.
The genius of the system of state and county medical societies or boards of health, with its various officials and incumbents in office and their terms of tenure, has been defined by Mr. Justice Mayfield in State v. Sanders, 187 Ala. 79, 65 So. 378, L.R.A. 1915A, 295, and Harrington v. State ex rel., etc., 76 So. 422. See, also, State ex rel. Sholl v. Duncan, 162 Ala. 196, 50 So. 265. In those cases it was held that although, in a primary sense, the positions of such health officers for the state and county are and are called offices, and the incumbents therein officials, it does not follow that such a place is an office, and the incumbent an officer, within the meaning of section 1467 of the Code, notwithstanding they might be such under chapter 22 of the Code. It is pertinent to observe, of the amended statute, that subdivision II is as follows:
When the board of revenue or court of county commissioners has exercised the discretionary power therein vested by the Legislature by the act in question, then the action of that body is of binding effect on the county, unless it be an abuse of such authority. See Lovelady v. Copeland, 73 So. 948; Covington County...
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