Stone v. State

• Decision Date: 11 May 1925
• Docket Number: 1 Div. 614
• Citation: 104 So. 894,213 Ala. 130
• Parties: STONE, County Treasurer, v. STATE ex rel. FREELAND.
• Court: Alabama Supreme Court

104 So. 894

213 Ala. 130

STONE, County Treasurer, v. STATE ex rel. FREELAND.

1 Div. 614

Supreme Court of Alabama

May 11, 1925

Certified Question from Court of Appeals.

Petition of the State of Alabama, on the relation of Albert Freeland for mandamus, to George E. Stone, as Treasurer of Mobile County. From a judgment awarding the writ, respondent appeals. Question certified to Supreme Court by Court of Appeals (104 So. 892).

See also, 104 So. 895.

Brown &amp Kohn, of Mobile, for appellant.

Stevens McCorvey, McLeod & Goode, of Mobile, for appellee.

GARDNER J.

The Court of Appeals has certified the question as to whether section 1558, Code 1907, is in violation of section 175 of the Constitution of 1901, when considered in connection with sections 173 and 60 of the Constitution of 1901. Said section 1558 reads as follows:

"When any person, holding any office or place under the authority of this state, is sentenced by any court of the United States, of this state, or any state, to imprisonment in the penitentiary, or hard labor for the county, his office or place is vacated from the time of the sentence; and if the judgment is reversed, he must be restored; but if pardoned, he must not."

It is insisted that the office involved in this litigation is a county office, and that such county officers are removable only upon ground of impeachment specified in section 173 of the Constitution of 1901, and only in the manner provided in section 175 of said Constitution, guaranteeing a trial by jury upon the hearing of such impeachment proceedings; that therefore the provisions of said section 1558, supra, are violative of these constitutional provisions.

Counsel have cited numerous cases to the effect that a statute providing for a removal of any of the officers named in these constitutional provisions, in any other manner or for any other cause than therein specified, is invalid as violative of the Constitution, among them Nolen v. State, 118 Ala. 154, 24 So. 251; Petree v. McMurray, 210 Ala. 639, 98 So. 782; Williams v. Schwarz, 197 Ala. 40, 72 So. 330, Ann.Cas.1918D, 869; Batson v. Pond, 206 Ala. 480, 89 So. 500; Touart v. State, 173 Ala. 453, 56 So. 211.

In none of these authorities was any question presented involving the application of section 1558, supra. This section is to be considered in connection with section 60 of our Constitution, which reads as follows:

"No person convicted of embezzlement of the public money, bribery, perjury, or other infamous crime, shall be eligible to the Legislature, or capable of holding any office of trust or profit in this state."

Said section 1558 is, in our opinion, in harmony with this latter provision of our Constitution, and was enacted to give force and effect thereto. Very clearly, if one who has been convicted of an infamous crime shall not be "capable of holding any office of trust or profit in this state," as plainly provided in section 60, supra, then manifestly, a statute which provides for the office to be vacated from the time of the sentence, and the restoration to office in the event of a reversal of the judgment, is but a recognition of this constitutional provision, and properly enacted for its more efficient enforcement. Section 175 of the Constitution dealing with the question of impeachment, preserves to the officer a trial by jury. Section 60 gives recognition to the fact that the officer has been duly tried before a jury and convicted, and has "had his day in court." It gives weight to such a conviction, and it was clearly not the intention of the Constitution that, following such...