State v. Teasley

• Decision Date: 17 June 1915
• Docket Number: 190
• Parties: STATE ex rel. BRASSELL v. TEASLEY, Probate Judge.
• Court: Alabama Supreme Court

69 So. 723

194 Ala. 574

STATE ex rel. BRASSELL v. TEASLEY, Probate Judge.

No. 190

Supreme Court of Alabama

June 17, 1915

On Rehearing, June 30, 1915

Appeal from City Court of Montgomery; C.P. McIntyre, Judge.

On motion requiring the Judge of Probate of Montgomery County to show cause why he should not receive and file the statement and petition of Walter R. Brassell to have his name placed on the ballot for City Commissioner. From an order of the associate judge of the city court declining to award a rule nisi, petitioner appeals. Affirmed, and rehearing denied.

Mayfield Sayre, and Somerville, JJ., dissenting.

W.A Gunter, Evans & Parrish, and E.S. Watts, all of Montgomery for appellant.

Appellant relies on points and authorities as follows:

I. The Legislature had no authority, by enacting Acts 1915, p. 52, § 11, amending Acts 1911, p. 289, to require as a qualification to the right to hold office as president or member of the board of commissioners that one has not for three consecutive years within the four years immediately preceding the election for members of such board held the office as president or member of the board of commissioners. Kentz v. Mobile, 120 Ala. 623, 24 So. 952; Finklea v Farish, 160 Ala. 230-236, 49 So. 366; 36 Cyc. 1122; Nolen v. State, 118 Ala. 154, 24 So. 251; Touart v. State, 173 Ala. 453-461, 56 So. 211; Sections 116, 173-176, Constitution; 8 Cyc. 279.

II. Section 11 of such act violates Const.Ala. § 22, and Const.U.S. § 10, art. 1. It is an ex post facto law; Dorsey's Case, 7 Port. 293; State v. Buckley, 54 Ala. 599; Cummings v. Missouri, 4 Wall. 277, 18 L.Ed. 356; Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366; Ex parte Wm. Law, 35 Ga. 303, Fed.Cas.No.8,126; Impeachment of Andrew Jackson; Rev.Code, 375; United States v. Reese, 92 U.S. 214, 23 L.Ed. 563; James v. Bowman, 190 U.S. 127, 23 Sup.Ct. 678, 47 L.Ed. 979.

III. Said section 11 violates Const. § 45. Lindsay v. United States S. & L. Ass'n, 120 Ala. 156-175, 24 So. 171, 42 L.R.A. 783.

IV. Section 11 of such act must be construed to apply to the commissioners hereafter elected or appointed. In re Strawbridge & Mays, 39 Ala. 367; Boyce v. Holmes, 2 Ala. 54; Barnes v. Mobile, 19 Ala. 707; Elliott v. Mayfield, 4 Ala. 417; Bradford v. Barclay, 42 Ala. 375; Chapman v. Holmes, 10 N.J.Law, 20; National Sewing Machine Co. v. Willcox, 74 F. 557, 20 C.C.A. 654; State v. Hartford Fire Ins. Co., 99 Ala. 221-225, 13 So. 362.

Upon consideration of this appeal by the full bench and without a previously prepared opinion in the cause, Justice McCLELLAN was directed by the court to prepare the following opinion expressing the court's views and conclusions on the appeal:

This is an appeal from an order of the associate judge of the city court of Montgomery declining to award a rule nisi to the judge of probate of Montgomery county, "requiring him to show cause why he should not receive and file the statement and petition of Walter R. Brassell to have his name placed upon the ballot to be used at the election to be held in the city of Montgomery on the third Monday in September next after the date hereof for commissioner for the city of Montgomery, which said original statement and petition is attached to the petition" for the rule nisi. The judge of probate refused to receive and file said statement and petition. The associate judge responded to the petition for the rule nisi as follows:

"Now upon consideration the undersigned doth hereby refuse to grant said rule nisi, addressed to the said Teasley [the judge of probate] as prayed for by the petition herein, for the reason upon which the said Teasley himself acted, namely, that it appears from said statement that the said Water R. Brassell has held by appointment the office of commissioner for Montgomery for three consecutive years just preceding the presentation of said statement and petition.

"This 31st day of May, 1915."

The ground or basis upon which the declination of the judge of probate to receive said statement and petition was rested, as well as the reason upon which the associate judge refused the rule nisi to the judge of probate, is found in section 11 of the amendatory act, applicable to the government of the city of Montgomery, passed, over the veto of the Governor, on February 5, 1915 (Acts 1915, p. 52). The provision of section 11 in question is as follows:

"No person shall be eligible to the office of president or member of the board of commissioners *** who shall, either by election or appointment, have held the office of president or member of the board of commissioners of any such city, three consecutive years, within the four years immediately preceding the date of the election for members of the board of commissioners."

The title of the amendatory act, of which section 11 is a part, is as follows:

"To amend an 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 have or which may hereafter have a population of as much as twenty-five thousand and less than fifty thousand people, according to the last federal census, or any such census which may hereafter be taken; to regulate the selection and election of commissioners and their terms of office and recall from office; to fix their powers, duties and compensation; to punish improper conduct in connection with elections and petitions hereunder; to abolish police commissioners, aldermen and certain other city officials, and otherwise provide for the creation and maintenance of said commission form of government,' approved April 6, 1911."

The contention is that the quoted feature of section 11 is unconstitutional and void, if applied to the election in September, 1915, and to the petitioner, who is within the terms of the provision, having held the office, for which he would be a candidate for nomination and election at the September, 1915, election, by appointment, for the period mentioned in section 11.

We cannot do better than to set out in the opinion the four grounds or reasons succinctly set out in the brief for appellant, Brassell. The report of the appeal will contain the authorities relied on by appellant, referring them to the appropriate points of contention to be quoted. These reasons or grounds are as follows:

"I. The Legislature was and is without authority to make as a qualification to the right to hold office as president or member of the board of commissioners that one has not for three consecutive years within the four years immediately preceding the date of the election for members of the board of commissioners, held the office as president or member of the board of commissioners. ***

"II. Said part of said section 11 is violative of section 22 of the Constitution of Alabama and article 1 of section 10 of the federal Constitution. It is an ex post facto law. ***

"III. Said part of said section 11 is violative of section 45 of the Constitution of Alabama, in that the title is prospective, while, the subject-matter is ex post facto or retrospective. ***

"IV. Said part of section, if not bad on account of the grounds assigned above, must be construed to apply to the commissioners 'hereafter' elected or appointed. ***"

1. Proposition 1 cannot be approved, in view of the apt authority afforded by the decision in Finklea v. Farish, 160 Ala. 230, 49 So. 366. It was there held that the change wrought, from the Constitution of 1875 in respect of the qualifications or eligibility of persons to hold office, by the Constitution of 1901 in that regard, "evidenced a purpose to change the policy of the state, to avoid implications adjudged to arise out of such sections (enumerated above in that opinion) in Dorsey's Case, 7 Port. 293, and in Kentz v. Mobile, 120 Ala. 623, 24 So. 952, to have general qualifications for office, other than those enumerated in section 60, to the discretion and determination of the Legislature." The two cases just referred to in the quotation are those chiefly relied upon to justify the first proposition of the appellant. As seen, they are not authority under the present organic law. There is nothing in the Constitution of 1901 which, directly or indirectly, restricts the right of the Legislature to fix the qualifications to hold the municipal office of city commissioner.

2. The second proposition of appellant is not tenable, for the reason that section 11 is not within the class called ex post facto laws. There are various definitions of such laws, a number of which are noted in 8 Cyc. p. 1027. We take that set forth in the text as satisfactory, though others are; doubtless, equally as well phrased:

"An ex post facto law is one which imposes a punishment for an act which was not punishable when it was committed, imposes additional punishment, or changes the rules of evidence, by which less or different testimony is sufficient to convict."

The prohibition against the passage of ex post facto laws only applies to penal or criminal matters. Calder v Bull, 3 Dall. 386, 1 L.Ed. 648; Bloodgood v. Cammack, 5 Stew. & P. 276, 280; Aldridge v. Railway Co., 2 Stew. & P. 199, 23 Am.Dec. 307; Washington v. State, 75 Ala. 582, 585, 51 Am.Rep. 479; 8 Cyc. pp. 1028, 1029. Section 11 of the law in question "neither takes away a legal right nor imposes a legal burden, one of which is necessary to the infliction of a penalty" or the imposition of a punishment. Washington v. State, 75 Ala. 582, 51 Am.Rep. 479. The Legislature has, as to the municipal office in question, an unrestricted discretion as to what shall be the qualifications for such office. The exercise of this discretion, through an otherwise valid enactment, is not the imposition of a punishment upon the appellant, but the visitation, by the...