State v. Owens
| Decision Date | 07 June 1928 |
| Docket Number | 7 Div. 818 |
| Citation | 117 So. 298,217 Ala. 668 |
| Parties | STATE ex rel. WILLIAMS v. OWENS. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.
Quo warranto by the State, on the relation of Martin J. Williams against Evan J. Owens. Judgment of nonsuit, and relator appeals. Affirmed.
Alto V Lee and J.M. Miller, both of Gadsden, for appellant.
O.R Hood, of Gadsden, for appellee.
While counsel have perhaps indulged in unnecessary pleading, the question presented by this record, when boiled down to a final analysis, is whether or not quo warranto will lie to oust the respondent from the office of president of the city council of Gadsden. Relator contends that the information states a charge which is not only declared to be a misdemeanor by section 1891 of the Code of 1923, but which also provides that it shall vacate the office, and that subdivision 2 of section 9932 of the Code of 1923 provides for the removal by quo warranto of any officer who "has done or suffered any act, by which, under the law, he forfeits his office."
Section 173 of the Constitution of 1901 deals with the impeachment of certain officers, and prescribes the causes or grounds, and section 175 makes the causes specified in section 173 applicable to other officials not dealt with in the two preceeding sections, and the officials so dealt with in section 175 include "mayors, intendants, and all other officers of incorporated cities and towns in this state." Said section also provides that they may be removed for the causes specified in section 173 "by the circuit or other courts of like jurisdiction or a criminal court of the county in which such officers hold their office under such regulations as may be prescribed by law; provided, that the right of trial by jury and appeal in such cases shall be secured."
Chapter 159 of volume 2 of the Code of 1923 deals with impeachments, and prescribes the regulations as authorized by the Constitution.
This court has expressly held that officers of this character are within the protection of section 175 of the Constitution, and cannot be removed from office during the term for which he is elected, except by the method and in the manner and for the causes fixed by the provisions of said section of the Constitution. Williams v. Schwarz, 197 Ala. 40, 72 So. 330, Ann.Cas.1918D, 869; Nolens Case, 118 Ala. 154, 24 So. 251; Franklin County v. Richardson, 202 Ala. 46, 79 So. 384; Petree v. McMurray, 210 Ala. 639, 98 So. 782.
The Legislature no doubt had the authority to make the conduct there set forth in section 1891 of the Code a misdemeanor, or perhaps to make it corruption in office, but in order for the accused to be so adjudged and removed from office, it must be in conformity with section 175 of the Constitution and chapter 159 of the Code, and not by quo warranto.
The case of Stone v. State ex rel. Freeland, 213 Ala 130, 104 So. 894, is unlike the case in hand. There the court applied section 60 of the Constitution, and which was considered in pari materia with...
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State ex rel. Olson v. Langer, 6288.
...proceedings. Such is the definite decision in State ex rel. Coe v. Harrison, 217 Ala. 80, 114 So. 905. See, also, State ex rel. Williams v. Owens, 217 Ala. 668, 117 So. 298.” To the same effect is Gandy v. State, 10 Neb. 243, 4 N. W. 1019. The instant case is not the first in which a contro......
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State ex Inf. McKittrick v. Wymore
...Commonwealth ex rel. v. Benn, 284 Pa. 421, 131 Atl. 253; State ex rel. v. McVay, 155 N.E. 698; Loposser v. State, 70 So. 345; State ex rel. v. Owens, 117 So. 298; People ex rel. v. Dreher, 134 N.E. 22, 302 Ill. 50; State ex rel. v. Thompson, 97 N.W. 887; Burkholder v. People, 147 Pac. 347; ......
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State, Relation of Olson v. Langer
... ... his incumbency, and continues to exercise its functions, he ... is a usurper, [65 N.D. 80] and may be ousted by quo warranto ... proceedings. Such is the definite decision in State ex ... rel. Coe v. Harrison, 217 Ala. 80, 114 So. 905. See also ... State ex rel. Williams v. Owens, 217 Ala. 668, 117 So ... To the ... same effect is Gandy v. State, 10 Neb. 243, 4 N.W ... The ... instant case is not the first in which a controversy has ... arisen between two claimants seeking to exercise the powers ... of governor. A similar ... ...
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State ex inf. McKittrick v. Wymore
... ... Funk, 16 Ohio Cir. Ct. 155; State v. Conser, 24 ... Ohio Cir. Ct. 270; Snyder's Case, 301 Pa. 288, 152 A. 33; ... Commonwealth ex rel. v. Benn, 284 Pa. 421, 131 A ... 253; State ex rel. v. McVay, 155 N.E. 698; ... Loposser v. State, 70 So. 345; State ex rel. v ... Owens, 117 So. 298; People ex rel. v. Dreher, ... 134 N.E. 22, 302 Ill. 50; State ex rel. v. Thompson, ... 97 N.W. 887; Burkholder v. People, 147 P. 347; ... State ex rel. v. Duval, 141 So. 173; Warren v ... State, 141 So. 901; State ex inf. v. Equitable Loan Co., ... 142 Mo. 325. (2) ... ...