State v. McGough

• Decision Date: 05 November 1898
• Citation: 118 Ala. 159,24 So. 395
• Parties: STATE EX REL. ROBERTSON v. MCGOUGH.
• Court: Alabama Supreme Court

24 So. 395

118 Ala. 159

STATE EX REL. ROBERTSON v. MCGOUGH.

Supreme Court of Alabama

November 5, 1898

Appeal from circuit court, Montgomery county; John R. Tyson, Judge.

Quo warranto by the state, on the relation of W. T. Robertson against Thomas D. McGough. From an order sustaining a demurrer to the information, relator appeals. Reversed.

In this information it was alleged that Thomas D. McGough, a resident citizen of Montgomery county, state of Alabama, was unlawfully holding and exercising the duties of the office of district inspector of oil; that on divers occasions during the month of March, 1897, said McGough had claimed and exercised and was claiming and exercising the right as district inspector of oil in the said state and county aforesaid, to test the quality of all mineral or petroleum oils, or any oil which is the product of petroleum, which is offered or intended for sale for illuminating purposes, and for such services had demanded and received a compensation that the sole authority upon which the said McGough held or exercised or performed the functions of the office of district inspector of oil was derived under an appointment of the state auditor, who claimed the right to make such appointment, under the provisions of "An act to provide for the inspection and sale of illuminating oils in Alabama approved February 16, 1897." It was then averred in the information that said act had not conferred any authority upon the auditor to appoint any one district inspector of oil, and that said McGough by virtue of his appointment was not entitled to hold said office, and had no authority to hold said office, and had no authority to inspect any oil or to demand or receive any compensation for such inspection, or to exercise any of the authorities, privileges, franchises or duties attempted to be conferred by said act; and that said McGough is guilty of usurping the office of district inspector of oil, since said act was violative of section 38 of article 4 of the constitution of Alabama.

The prayer of the information was for the issuance of a rule or other appropriate writ to McGough requiring him to show by what warrant he exercised and enjoyed the duties and privileges of the office of district inspector of oil, and that on final hearing the court should adjudge that said McGough was usurping and intruding into said office, and that judgment be rendered excluding said McGough from said office of district inspector of oil. This information was filed on April 19, 1897.

To this information the respondent demurred upon the following grounds: "(1) That it appears in and by the said information that he is rightfully exercising the duties and powers of the said office of district inspector of oil. (2) That it appears in and by the said information, that his authority and right to exercise and hold the said office of district inspector of oil is derived under appointment from the state auditor under the provisions of 'An act to provide for the inspection and sale of illuminating oils in the state of Alabama,' approved February 16, 1897." The court sustained this demurrer and rendered judgment holding that said Thomas D. McGough was authorized to exercise the rights, privileges and duties of district inspector of oil, and dismissed said petition and information. To the rendition of this judgment the relator duly excepted, and upon this appeal, prosecuted by him assigns the rendition thereof as error.

Thos. G. & Chas. P. Jones, for appellant.

John J. Moore, Horace Stringfellow, and Tompkins & Troy, for appellee.

HARALSON J.

The constitution (article 4, § 38) declares: "No state office shall be continued or created for the inspection or measuring of any merchandise, manufacture or commodity; but any county or municipality may appoint such officers when authorized by law."

The sole question presented in this case is, whether or not the act, "To provide for the inspection and sale of illuminating oils in the state of Alabama," adopted February 16, 1897 (Acts 1896-97, p. 1133), is in conflict with the foregoing constitutional provision.

Under this statute, the state is the source of the inspector's authority; the duties pertaining to the office are of a public character; the terms of office are four years from the date of their respective appointments, and until their respective successors shall be appointed and qualified (section 2); and their compensation is fixed by law. It is not here contended, and could not be, that these inspectors, under these conditions, are not state officers. Montgomery v. State, 107 Ala. 372, 18 So. 157, and authorities there cited.

It will be observed that the section of the constitution to be construed in connection with said act, was not intended to prohibit, and does not prohibit, "the inspection or measuring of any merchandise, manufacture or commodity." Whatever authority the legislature had, prior to the adoption of the constitution of 1875, in respect to such inspections, it now has, with the limitation only of the manner of its exercise. Theretofore, it had plenary power over the subject, since there was nothing in the constitution of the state to limit its exercise. The only restriction laid upon this power under the present constitution is, that "no state office shall be continued or created" for such purposes. The other provision, "but any county or municipality may appoint such officers [or officers for such purposes] when authorized by law," imposes no new limitation of authority on the legislature. It had, and exercised this authority under the older constitutions of the state, before the adoption of the one of 1875. The exception in this clause of said section is important as contended, as indicating an intention on the part of the framers of the constitution to limit any and all inspections authorized to be made of merchandise, to county and municipal authorities.

Section 1 of said act of February 16, 1897, and its remaining sections, place it beyond all dispute, that said act relates alone to oils, whether manufactured in this state, or imported therein, which are offered for sale, or sold "for consumption for illuminating purposes." The manner of testing,-for really the inspection consists in a scientific test, to determine at what degree of temperature, Fahrenheit, the oils will ignite or burn,-is particuarly prescribed in said section, followed by the provision, that "no oil, or other substance, which by test herein described, ignites and burns at any temperature below one hundred and ten degrees, Fahrenheit, shall be allowed to be sold, offered for sale, or consumed for illuminating purposes in this state."

The question arises, then, whether this act of the legislature falls under the condemnation of said section of the constitution, providing that "no state office shall be continued or created for the inspection of any merchandise, manufacture or commodity."

It is to be admitted broadly, that the object to construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it; that their intent is deduced, not only from the language of the particular provision to be construed, but in connection with all the other parts of the instrument; from its history, and from a consideration of the causes which led to its adoption, and the mischief it was intended to remedy. Cooley, Const. Lim. 69, 70, 80; 1 Story, Const. § 405; Mayor, etc., of Mobile v. Stonewall Ins. Co., 53 Ala. 570; Taylor v. Woods, 52 Ala. 477; Zeigler v. Railroad Co., 58 Ala. 594.

But, there are other rules of interpretation that may override all others, as "where a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature (or framers of a constitution) should be intended to mean what they have plainly expressed, and consequently no room is left for construction. Possible or even probable meanings, when one is plainly declared in the instrument itself, the courts are not at liberty to search for elsewhere." Cooley, Const Lim. 69, 70. The framers of the constitution "must be understood to have employed words in their natural sense, and to have intended what they said." Id. 73; Gibbons v. Ogden, 9 Wheat. 188; Ex parte Mayor, etc., of Florence, 78 Ala. 423. "We can only learn what they intended, from what they have said. It is theirs to command, ours to obey. When their language is plain, no discretion is left to us. We have no right to stray into the mazes of conjecture, or to search for an imaginary purpose." Lehman v. Robinson, 59 Ala. 241.

Whenever a constitutional provision is plain and unambiguous, when no two meanings can be placed on the words employed, it is...