State v. Lane

• Decision Date: 10 April 1913
• Citation: 181 Ala. 646,62 So. 31
• Parties: STATE ex rel. WILKINSON et al. v. LANE.
• Court: Alabama Supreme Court

62 So. 31

181 Ala. 646

STATE ex rel. WILKINSON et al. v. LANE.

Supreme Court of Alabama

April 10, 1913

Rehearing Denied May 8, 1913

Appeal from City Court of Birmingham; C.C. Nesmith, Judge.

Quo warranto by the State, on relation of Horace C. Wilkinson and others, against A.O. Lane, to oust defendant, as Commissioner of the City of Birmingham, from office on the ground that at the time of his appointment he was serving under an election as Judge of the Circuit Court of Jefferson County. From an order overruling demurrers to the answer and denying the writ, relators appeal. Affirmed.

Horace C. Wilkinson, of Birmingham, for appellants.

Cabaniss & Bowie, Frank S. White & Sons, Sterling A. Wood, James A Mitchell, A. Leo Oberdorfer, and Romaine Boyd, all of Birmingham, for appellee.

DE GRAFFENRIED, J.

"The British Parliament has supreme and uncontrolled power, and may change the Constitution of England, and repeal even Magna Charta, which is itself only an act of Parliament." In re Whilcomb, 120 Mass. 118, 21 Am.Rep. 502.

The Legislature of Alabama has the same power that belongs to the British Parliament except in so far as its powers are abridged by the Constitution of the United States and the Constitution of the state. Speaking broadly, the government of the United States possesses no powers--except such as necessarily belong to it as an independent government--other than those which are conferred upon it by the federal Constitution. Speaking broadly, the Legislature of Alabama possesses all the legislative power which, under the federal Constitution, resides in the state, except where that power has expressly or impliedly been taken from it by the Constitution of the state. Speaking broadly, the Constitution of the United States is a grant of power. Speaking broadly the Constitution of Alabama is a limitation upon the exercise of power. Miller v. Marx, 55 Ala. 322.

1. "Municipal corporations are of a twofold character--the one public as regards the state at large in so far as they are agents in government; the other private in so far as they are to provide local necessities and conveniences for their own communities. And the fact that the Legislature has blended the public and private functions of a municipal corporation in one grant of power does not destroy the clear and well-settled distinction between them. In its governmental character the corporation is made by the state a local depository of certain limited and prescribed political powers, to be exercised for the good of the state. In its proprietary character the theory is that the powers are not conferred chiefly from considerations connected with the government of the state at large, but for the private advantage of the compact community which is incorporated as a distinct legal personality or corporate individual." 20 Am. & Eng.Ency.Law (2d Ed.) 1131; Abbott on Municipal Corporations, vol. 1, § 7.

At common law the citizens of towns and cities were subjects of the crown, but their officers were not crown officers. Cities and towns elected their officers, and those officers enforced for them the customs and by-laws of their towns and cities. The citizens of London set great store upon electing their mayor: "Come what might they would have no king but the mayor." 1 Stubbs, Const. History, 674.

"The charters which conveyed to the townsmen these precious privileges of freedom of trade, of justice, and of internal government had invariably to be purchased from the lord of the town, whether king, noble or abbot, and paid for in hard cash." Taylor on the Origin and Growth of the English Constitution, 462.

While in the sense that the government of England granted to a town, as a separate political entity, the privilege to exist fixed its boundaries, and declared what, as a town, it was improper for it by ordinances to do, a town was a subordinate department of the English government, nevertheless, in that either for a cash consideration or in some other way, the town people acquired the right to regulate, by their own town laws, their internal affairs and by officers selected by themselves, to collect the town's taxes and to administer justice under their valid town ordinances, an early distinction was drawn between a town officer and an officer of the crown, and between mere town affairs and the affairs of the crown or general government.

In truth, we do not see how, unless the historical development of municipal law is entirely discarded, it can be held upon sound reasoning that, in a state with a constitutional and statutory history like our own, a mere municipal officer can be held to be, within the meaning of our Constitution, an officer of the state. Town law found its origin in, and owed its development to, the principle of local self-government, the basic principle upon which all Teutonic governments rest. An Englishman might be proud to acknowledge himself the vassal of an English king, but when he claimed shelter under his own roof, he demanded that he should there be the "king in his own house." The dwellers in towns were perfectly willing to be the king's subjects, to obey his laws, and they were also willing that their towns should be the king's towns, but they demanded and received the right to govern the towns in which they lived, in accordance with their own regulations not in contravention of the general laws of the realm. The towns were the king's towns. Their inhabitants were the king's subjects, and they paid obedience to those who held office under the king; but the officers of a town were town officers, and the laws adopted by its people for their government as citizens of the town were town laws.

"No alien officer of any kind, save only the judges of the High Court, might cross the limits of their liberties; the sheriff of the shire, the bailiff of the hundred, the king's tax-gatherer or sergeant at arms, were alike shut out. The townsfolk themselves assessed their taxes, levied them in their own way, and paid them through their own officers. They claimed broad rights of justice, whether by ancient custom or royal grant; criminals were brought before the mayor's court, and the town prison with its irons and its cage, the gallows at the gate or on the town common, testified to an authority which ended only with death.

"In all concerns of trade they exercised the widest powers, and bargained and negotiated and made laws as nations do on a grander scale to-day. They could covenant and confederate, buy and sell, deal and traffic after their own will; they could draw up formal treaties with other boroughs, and could admit them to or shut them out from all the privileges of their commerce; they might pass laws of protection or try experiments in free trade." 1 McQuillin, Mun.Corps. 102, note 81.

In this country, the town idea found its best early field for development in New England. The people of that section soon began to turn their attention to commerce and trade, and these lines of human activity tend to the establishment of villages, towns, and cities. The towns were there with well-developed town laws in the early history of the colonies. The difference between the laws of the English government and these town laws was well marked and thoroughly understood. The difference between the selectmen of the town and the duties which they had to perform, and an officer of the government of England, or its representative, the colony, and the duties which such officer had to perform, were also well defined and understood. When the people of a town met in their town house to pass laws for the regulation of the affairs of the town only and to select officers for the town only, they knew that, while they were the subjects of England and while their town was an English town, they were acting only for the town, that the laws which they passed were mere towns laws, and that the officers selected by them held office under them, and that they were not officers of the government of England or of their colony. When, after the establishment of the federal government, in drafting their Constitutions, they referred in mere general terms to an officer of a state, they knew that they were not referring to mere municipal offices. In those days governments were simpler than they are to-day, for, to-day, a municipal officer frequently, by virtue of his office, owes one duty to his municipality and another to the state.

The same municipal (town) laws which were so well developed and so thoroughly understood in New England were the same municipal (town) laws which prevailed in Alabama when it was only a territory, when it adopted its various Constitutions as a state, and is the same municipal law which prevails to-day. It is that same municipal law which our ancestors brought with them from the parent country as a part of the English common law, and, in Alabama, a mere municipal officer is not, within the meaning of our Constitution, an officer of this state. Draper v. State, 57 So. 772.

We have given the above subject full discussion, because, in the brief of counsel for appellant, the propriety of the decision of this court in Draper v. State, supra, is questioned.

2. Some man has said that words are things. At any rate, every word in a statute should mean something. When the meaning of words which are contained in a statute is plain and unambiguous, then courts, in construing such statute, should give to those words that meaning. Through the medium of words expression is given to the legislative will, and when that will is plainly and validly expressed, courts should give effect to that will.

In the act entitled "An act to provide and create a commission form of municipal government and to establish same in all cities of Alabama which now...