State v. Sayre

• Decision Date: 24 June 1897
• Citation: 24 So. 89,118 Ala. 1
• Parties: STATE EX REL. WINTER v. SAYRE.
• Court: Alabama Supreme Court

24 So. 89

118 Ala. 1

STATE EX REL. WINTER v. SAYRE.

Supreme Court of Alabama

June 24, 1897

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

Information in the nature of quo warranto, by the state, on the relation of John Gindrat Winter, against A. D. Sayre. From a judgment sustaining the validity of respondent's appointment as judge of the city court, relator appeals. Affirmed.

Coleman and Head, JJ., dissenting.

Thos G. & Chas. P. Jones, W. A. Gunter, Thos. H. Watts, Gordon Macdonald, Farnham, Crum & Well, Geo. M. Marks, and Tompkins & Troy, for appellant.

John D Roquemore, Francis L. Pettus, Horace Stringfellow, and Roquemore, Hill & Rogers, for appellee.

BRICKELL C.J.

This was an information in the nature of a quo warranto, in which the appellant was relator, and the appellee was respondent to test and determine the rival claims of the respective parties to the office of judge of the city court of Montgomery. The material facts are undisputed. Thomas M. Arrington, by the nomination of the governor and the selection of the senate, at the regular session of the general assembly of 1892-93 was appointed the judge of the court for the prescribed term of six years, and until the close of the general assembly at which his successor should be appointed and confirmed. He was duly qualified, and entered upon and continued in the exercise of the powers and duties of the office until the 1st day of October, 1895, when he resigned. Upon his resignation the governor appointed William S. Thorington as his successor, who qualified and remained in office until he resigned, on the 1st day of February, 1896; and the relator was by the governor appointed his successor, and was duly commissioned and qualified, continuing in office until the close of the last regular session of the general assembly. During the session the governor nominated the respondent and two others to the senate, for the selection and appointment of one to the office of judge of the court. The senate selected and appointed the respondent, and on the close of the session he was commissioned and qualified, and entered into the office, assuming and exercising its powers and duties. The circuit court rendered judgment against the relator, declaring that he was not entitled to the office, and sustaining the validity of the appointment, and of the consequent right of the respondent; and it is from this judgment the appeal is taken.

Two questions are involved. The first is whether, by force of the seventeenth section of the sixth article of the constitution, the appointment of the relator was for the unexpired term of Judge Arrington; continuing until the close of the session of the general assembly of 1898-99, and until a successor was appointed and qualified. The remaining question involves the validity of the clause of the act approved February 13, 1879 (Pamph. Acts 1878-79, pp. 418, 419), prescribing the term of office of the judge of the court, and the mode of filling the office, which, in the event of a vacancy occurring, confers on the governor the power to fill it by an appointment continuing until the close of the next session of the general assembly.

The seventeenth section of the sixth article of the constitution reads: "Vacancies in the office of any of the judges or chancellors of this state shall be filled by appointment by the governor; and such appointee shall hold his office for the unexpired term, and until his successor is elected or appointed and qualified." The article is entitled "Judicial Department," and is devoted principally to the vesting of the judicial power of the state; and in all former constitutions a corresponding article, bearing the same title, has been devoted to the same purpose. The first section of the article vests the judicial power "in the senate sitting as a court of impeachment, a supreme court, circuit courts, chancery courts, courts of probate, such inferior courts of law and equity, to consist of not more than five members, as the general assembly may from time to time establish, and such persons as may be by law invested with powers of a judicial nature." The section is the counterpart of the same section of the same article of the constitution of 1868, the immediate predecessor of the present constitution, and varies from the corresponding section of the like article of the preceding constitution. The variance is, however, rather of form, than in matter of substance. The original constitution of 1819, and its successors of 1861 and 1865, vested the judicial power "in one supreme court, circuit courts to be held in each county in the state, and such inferior courts of law and equity, to consist of not more than five members, as the general assembly may from time to time direct, ordain and establish." Each declared the power of the general assembly to establish courts of chancery, and to establish in each county a court of probate, and contained provisions by which the senate was constituted the sole tribunal for the trial of all impeachments of civil officers. If we omit the words, "and such persons as may be by law invested with powers of a judicial nature," the section in its present form is simply expressive, in a single clause or sentence, of that which was manifested by the several sections of the article of former constitutions creating the judicial department and vesting judicial powers, taken in connection with the sections relating to impeachments. When these words, "and such persons as may be by law invested with powers of a judicial nature," are read and interpreted in the light of prior legislative and judicial history, it is apparent they were introduced into the constitution, and properly introduced, in the connection in which they are found, from an abundance of caution. Until the decision in Gaines v. Harvin, 19 Ala. 491, it was a vexed question whether the general assembly could confer power essentially of a judicial nature on other than judicial officers,-the judges of the courts referred to in the constitution, or the judges of inferior courts of legislative creation. After elaborate argument, and deliberate, mature consideration, in the case referred to, it was decided that it was within legislative competency to confer such power on mere ministerial or executive officers. To avoid a recurrence of this question,-to place legislative power, in this respect, beyond the pale of controversy,-these words were introduced into the constitution. Ex parte Roundtree, 51 Ala. 42.

In the structure of the judicial system of the state, in the creation of judicial tribunals, and in the division and distribution of judicial power, there has been but little of change in the several constitutions of the state. All have provided for a supreme court, defining its jurisdiction and powers as they are now defined, with the exception of the grant to it by the present constitution of original jurisdiction of the impeachment of particular officers. All have provided for circuit courts, for courts of chancery, for courts of probate, and for the election or appointment of justices of the peace, and have defined with more or less of precision the jurisdiction each court was to exercise, and the extent of the jurisdiction justices of the peace derived from the constitution itself. The system is in itself, and of itself, complete; and, though there has been a grant or reservation to the general assembly of power to establish inferior courts of law and equity, there has not been any part or any fraction or fragment of the judicial power left in abeyance, awaiting the happening of any future event, or the exercise of future legislative power, to vitalize or quicken it into activity. If the general assembly never exercised the power to establish inferior courts with which it was clothed, and its exercise is purely matter of legislative discretion, the whole element of sovereignty known as the "judicial power" would exist, confided to tribunals which may properly be said to be of constitutional creation. Perkins v. Corbin, 45 Ala. 118. The changes in the structure of the system-the more important changes-wrought by constitutional amendment have been in the tenure of judges, and the mode of their election or appointment. By the original constitution, of 1819, all judges held office during good behavior, and were elected by the joint vote of the two houses of the general assembly. By an amendment adopted in January, 1830, the tenure or term of office was changed to six years; but there was no change of the mode of election until January, 1850, when an amendment was adopted transferring the election of judges of the circuit courts to the qualified electors of the circuits, respectively, and the election of judges of the courts of probate, and other inferior courts, to the qualified electors of the counties, cities, or districts for which such courts were respectively established. The judges of the supreme court and chancellors remained elective by the general assembly until the formation and adoption of the constitution of 1868. By that constitution the tenure or term of all judges was fixed at six years, and judges of the supreme court were elective by the qualified electors of the state at large, chancellors by the qualified electors of the division, judges of the circuit court by the qualified electors of the circuit, judges of probate by the qualified electors of the county, and judges of the inferior courts by the qualified electors of the county, city, town, or district, for which the court was established. The present constitution prescribes six years as the term of office of the chief justice and associate justices of the supreme court, circuit judges, chancellors, and probate judges, and declares the...