Street v. Cloe

• Decision Date: 01 June 1922
• Docket Number: 6 Div. 615.
• Citation: 93 So. 591,207 Ala. 631
• Parties: STREET v. CLOE ET AL., CITY COM'RS.
• Court: Alabama Supreme Court

93 So. 591

207 Ala. 631

STREET v. CLOE ET AL., CITY COM'RS.

6 Div. 615.

Supreme Court of Alabama

June 1, 1922

Appeal from Circuit Court, Jefferson County; Dan. A. Greene, Judge.

Proceeding by Thomas E. Street contesting the election of W. B. Cloe Wm. L. Harrison, Mrs. Mary Echols, and W. E. Dickson as Commissioners of the City of Birmingham. From an order dismissing his petition or statement of contest, plaintiff appeals. Affirmed.

Erle Pettus, of Birmingham, for appellant.

W. J Wynn, W. A. Jenkins, and F. D. McArthur, all of Birmingham for appellees.

MILLER J.

This is an election contest instituted by Thomas E. Street against W. B. Cloe and others who were declared elected commissioners of the city of Birmingham at an election held on the 10th day of October, 1921, or at a run-off election held on October 17, 1921.

The commissioners to be elected at that time consisted of a president of the commission and four associate commissioners. The contestant avers that there was a separate office of one of the four associate commissioners of the city, known as "commissioner to succeed the successor of the successor of the commissioner whose term expired on the first Monday in November, 1915." He (contestant) qualified as a candidate for this particular office of commissioner. No other candidate qualified for that office. His name was not printed on the official ballot as a candidate for that particular office; but his name was printed on the official ballot as a candidate for commissioner together with the names of all the candidates who qualified for any of the four offices of associate commissioners. He did not receive a majority of the votes cast for commissioner, nor a sufficient number of votes to be in the run-off election. However, the said name and particular office of commissioner to which he aspired was written on numbers of ballots, and he was in that way voted for as a candidate for the office of "commissioner to succeed the successor of the successor of the commissioner whose term expired on the first Monday in November, 1915." He not only received in this way a majority but all the votes cast in the election for this particular office. These ballots were ignored for this particular office of commissioner, but counted for him as associate commissioner.

The contestees filed motion to dismiss the petition or statement of contest; the motion was granted, the statement of contest was dismissed, and contestant was taxed with the court cost. This judgment of the court is assigned as error.

This election was held under General Acts 1915, p. 789. Section 4, p. 790, of the act provides:

"At any election held under the provisions of this act, at which commissioners are elected, the candidates receiving the highest number of votes for the respective offices for which they are candidates, shall be elected thereto, provided he receives a majority of all votes cast for such office."

There are many questions presented, discussed, and argued by counsel. The contestant was a candidate for a special office of commissioner. He claims he was duly elected; received not only a majority but all the votes cast in the election for that office. Was there such a special office of commissioner? If yea, then was he legally elected to it? These are the real questions in the case. If the first question is answered in the negative, then we will not reach the second one. If it is answered affirmatively, then we must answer the second question and other questions presented by the record.

On October 10, 1917, the second Monday, the election day, was there an office to be filled by election in the city of Birmingham, known as "commissioner to succeed the successor of the successor of the commissioner whose term expired on the first Monday in November, 1915"?

A three-commissioner form of government for municipalities was enacted by the Legislature and approved on March 31, 1911 (Gen. Acts 1911, p. 204). By section 1 it was made to apply to cities which now have or may hereafter have a population of as much as 100,000, according to the last federal census, or any such census which may hereafter be taken. At that time and now only one city in Alabama had a population of 100,000 or more. So the act applied, when enacted and approved, to only one city-the city of Birmingham. It has been declared by this court not to be a local act. State ex rel. v. Joseph, 175 Ala. 579, 57 So. 942, Ann. Cas. 1914D, 248; State ex rel. Wilkinson v. Lane, 181 Ala. 646, 62 So. 31. Section 2 of the act provides that the mayor of the city shall become one of the commissioners, and be president of the board of commissioners, and his term of office was fixed at two years until the first Monday in November, 1913. The term of office of the two commissioners appointed by the Governor was three and four years, respectively, one ending the first Monday in November, 1914, and the other on the first Monday in November, 1915. Each commissioner was to hold office until his successor was elected and qualified, as the act afterwards provided. Section 6 of the act declares and grants the powers of the commissioners. It reads, in part:

"Provided, however, that the commissioner appointed to fill the office of commissioner the term of which expires on the first Monday of November, 1915, and hereafter elected to said office the term of which expires as aforesaid, shall during his term of office exercise at all times the duties required of the department of public justice."

Section 9 stipulates and requires the names of the candidates shall be placed alphabetically underneath the words: "For president of the board of commissioners;" "for commissioner for the term of _____ years, as the case may be."

Thus it is made clear and certain under the Three, Commissioners Act, Gen. Acts 1911, p. 204, there was such an office, known and designated by it, as a four-year term office, which term of office expired on the first Monday in November, 1915. The term of office of each commissioner was different; and the duties of this one, whose term was four years and ended in November, 1915, were judicial in their scope and nature. This office of this commissioner whose term ended in November, 1915, was by this court declared to be a municipal office and a judicial office. State ex rel. v. Lane, 181 Ala. 650, 62 So. 31. Hon. A. O. Lane was appointed by the Governor to this office. He was at the time judge of the circuit court of Jefferson county; he resigned as circuit judge to accept this appointment; and had been elected for a term as judge for six years, which ended in 1917. That case (181 Ala. 650, 62 So. 31) held Judge Lane could hold that office of commissioner as it was a judicial one; and section 150 of the Constitution of 1901 did not prohibit him from holding it during the term for which he was elected to the office of circuit judge (State ex rel. v. Lane, 181 Ala. 646, 62 So. 31).

The Legislature by an act approved September 25, 1915, in Gen. Acts 1915, p. 789, provided for the government of cities by five commissioners. It applied to cities which now or may hereafter have a population of 100,000 people or more according to the last or any subsequent federal census. Only one city in Alabama had that population, and that was the city of Birmingham. This city was then operating under the three commissioners act of 1911. This five commissioners act could not become operative until such cities (city of Birmingham) by an election adopted the provisions of the act. The act provided in section 2 that it be submitted in such cities by special election to the qualified voters to be held on the second Monday in October, 1915, whether or not such city shall be organized under and governed by the provisions of this act. This city at said election by a majority vote of the qualified voters voting at the special election in October, 1915, placed the organization and government of the city under this five commissioners act of 1915. The city of Birmingham was then under the three commissioners act; this the Legislature knew. Judge A. O. Lane, an ex circuit judge whose term for which he was elected ended in 1917, was one of the three commissioners; and this court had declared he could hold this particular office; and was not prohibited from so doing by section 150 of the Constitution. These matters were known to and appear to have been in the mind and consideration of the lawmakers in framing this five commissioners act. They try to make the provisions of the new act of 1915 harmonize as to the terms of office of the officials of the act of 1911, who were holding office under it in 1915. The three commissioners under the 1911 act were to be three of the five commissioners under the 1915 act. It provided for the election of two additional commissioners; and provided that their terms of office would end on the first Monday in November, 1917. Sections 4 and 5 of the act. It provided the terms of office of the three commissioners under the act of 1911 would each end on the first Monday in November, 1917. Section 5, Act 1915. Thus on the first Monday in November, 1917, the term of office of each and all of the five commissioners would end at the same time. Under the act of 1911 (three commissioners act), the term of office of the commissioner ending on the first Monday in November, 1915, held by Judge Lane, would have to be filed by an election. So section 5 of the 1915 act provides:

"The successor to the commissioner of such cities, whose term of office expires on the first Monday in

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