State v. Thompson

• Decision Date: 31 January 1905
• Parties: STATE EX REL. COVINGTON v. THOMPSON.
• Court: Alabama Supreme Court

38 So. 679

142 Ala. 98

STATE EX REL. COVINGTON v. THOMPSON.

Supreme Court of Alabama

January 31, 1905

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Proceedings in the nature of quo warranto by the state, on the relation of G. W. Covington, against J. A. Thompson, to test respondent's right to the office of county superintendent of education for Montgomery county. From a judgment dismissing the petition, relator appeals. Reversed.

The proceedings in this case were had on an information in the nature of quo warranto, filed by the state of Alabama, on the relation of G. W. Covington, against J. A. Thompson, on November 24, 1904.

In the petition it was averred that the relator was a resident citizen of the county of Montgomery and state of Alabama, and had been such for a number of years; that the office of county superintendent of education for Montgomery county was an office established by the Legislature of Alabama, approved February 27, 1899; that in said act it was provided that the county superintendent of education of Montgomery county should be elected at the general election to be held on the first Monday of August, 1900, and at the general election every four years thereafter; and that the term of said office should begin on the first day of October next following such election, and that the person elected should hold such office and perform all the duties thereof under the laws governing public schools, and until his successor was duly qualified. It was then averred that on the first Monday in August, 1900 the respondent, J. A. Thompson, was elected county superintendent of education for Montgomery county, and on the 1st day of October, 1900, entered upon the discharge of his duties as such, after having been duly qualified and received his commission, and that at the time of filing the petition the term of office of said J. A. Thompson had expired, and his right to hold said office had ceased; that on the 8th day of November, 1904, at a general election held in Montgomery county, in the state of Alabama, the relator, G. W Covington, was elected county superintendent of education for Montgomery county, and on the 15th day of November, 1904, he made his bond and duly qualified as such county superintendent of education, and there was issued to him a commission signed by the Governor and Secretary of State that, after so qualifying and having a commission issued to him, the relator called upon J. A. Thompson and demanded possession of the books and papers relating to the office of superintendent of education for Montgomery county, and that he be allowed to exercise the duties of said office; that notwithstanding such demand, the said Thompson refused to comply therewith, and that the said Thompson, at the time of filing the petition, was usurping and unlawfully holding and exercising the said office of county superintendent of education of Montgomery county. It was then averred that the right of said J. A. Thompson to hold said office, or exercise any of its powers, duties, or privileges, terminated upon the relator's qualifying as county superintendent of education, as hereinabove stated; and that by virtue of his said election and qualification the relator is entitled to hold said office, and exercise all of the powers, duties, privileges, and liberties of the same. The prayer of the petition was that process issue requiring the respondent, J. A. Thompson, to appear and answer, and show by what warrant he claims to exercise and enjoy the powers, duties, and privileges of the office of county superintendent of education of Montgomery county, and that upon a hearing of said cause judgment may be rendered excluding the said J. A. Thompson from said office, and declaring that the relator, G. W. Covington, was entitled to the same.

The respondent filed an answer, in which he averred the following facts: That he was duly elected county superintendent of Montgomery county on, to wit, the first Monday in August, 1900, and took the oath of office and gave bond, and otherwise complied with the provisions of law, and entered upon the discharge of the duties of said office on, to wit, the 1st day of October, 1904; no successor to him had been elected; and the state superintendent of education called upon him to give a new bond with sureties as such county superintendent of education, which he did in all respects as required by law, which said bond was duly approved, and he continued to act as such county superintendent. For further answer, this respondent saith that under the law his term of office began on October 1, 1900, and continues till his successor is duly qualified; that G. W. Covington was elected county superintendent of education of Montgomery county at the general election held on, to wit, the 8th day of November, 1904, and that under the law his term of office begins on the 1st day of October next following such election, and on, to wit, the 1st day of October, 1905, and that until such date the said Covington's term does not begin, and he has no right to be inducted into said office.

Demurrers were filed by the petitioner to this answer, which demurrers were overruled, but under the opinion on the present appeal it is unnecessary to set out these demurrers in detail.

After the overruling of the demurrer of plaintiff to the answer of the defendant, J. A. Thompson, as shown by the judgment entry, the following evidence was introduced: It was proven that the relator, G. W. Covington, was over 40 years of age, and was a resident citizen of the county of Montgomery, and had been such citizen of the county of Montgomery and state of Alabama, and of the United States, and a qualified elector in said state and county, for more than 15 years last past, and still is such a citizen, resident, and qualified elector; that the office of county superintendent of education of Montgomery county was an office established by the Legislature of the state of Alabama, and that by an act of the Legislature of Alabama, approved February 7, 1899, it was provided that the county superintendent of education of Montgomery county should be elected at the general election to be held on the first Monday in August, 1900, and at the general election every four years thereafter, as the other county officers are elected; that the term of the office of county superintendent of education should begin on the first day of October next following such election, and that he should hold such office and perform all the duties thereof under the laws governing public schools, and until his successor is duly qualified; that J. A. Thompson was elected county superintendent of education of Montgomery county at the general election in August, 1900, and on the 1st day of October, 1900, entered upon the discharge of his duties as such, having taken the oath of office, given bond, and otherwise complied with the provisions of law regarding the same; that on the 1st day of October, 1904, no successor to him had been elected, and the state superintendent of education called upon the said Thompson to give a new bond, with sureties, as such county superintendent of education, and in all respects as required by law, which said bond was duly approved, and he continued to act as such county superintendent of education; that on the 8th day of November, 1904, at the general election for the state of Alabama, and held in the county of Montgomery, G. W. Covington was elected county superintendent of education for Montgomery county, Ala., and on the 15th day of November, 1904, he made his bond and qualified by taking the oath of office, and did everything else requisite to said qualification; that on said last-named date his bond as such county superintendent of education was approved by the judge of probate of Montgomery county, Ala., and a certified copy of said bond was on said date filed with the state superintendent of education, and a commission issued to him, the said Covington, by the Governor and Secretary of State of the state of Alabama, as such superintendent of education for Montgomery county, Ala., on said last-named date; that immediately thereafter, and before the filing of the petition in this case, the said Covington called upon the said Thompson and demanded possession of the books and papers relating to the said office, and demanded to be placed in charge of the same, and be allowed to exercise the duties of said office, but, notwithstanding this demand, the said Thompson refused to do so, and continues to act as such county superintendent of education. Upon the introduction of all the evidence, the court rendered a judgment declining to grant the relief prayed for, and ordering the petition dismissed. From the rendition of this judgment the relator duly excepted.

The relator appeals, and assigns as error the overruling of the demurrer to the respondent's answer, and the judgment of the court refusing to grant the relief prayed for and dismissing the petition.

Steiner, Crum & Weil, for appellant.

McAlpine & Robinson, Charles L. Bromberg, W. T. Lowe, Tennis Tidwell, and E. W. Godbey, for appellee.

SIMPSON J.

In order to get a clear idea of the legal status of this case, we will state first the substance of the various statutes relating to county superintendents of education, going as far back as necessary to an understanding of the case.

Under the Codes of 1876 and 1886 they were all appointed by the...