Young v. State ex rel. Russell

• Decision Date: 24 May 1951
• Docket Number: 8 Div. 564
• Citation: 256 Ala. 84,53 So.2d 350
• Parties: YOUNG v. STATE ex rel. RUSSELL.
• Court: Alabama Supreme Court

Page 350

53 So.2d 350

256 Ala. 84

YOUNG v. STATE ex rel. RUSSELL.

8 Div. 564.

Supreme Court of Alabama.

May 24, 1951.

Rehearing Denied June 28, 1951.

S. A. Lynne, Decatur, for appellant.

Julian Harris and Norman W. Harris, Decatur, A. A. Carmichael, Atty. Gen., and Gardner F. Goodwyn, Jr., Asst. Atty. Gen., amici curiae, for appellee.

LIVINGSTON, Chief Justice.

This is an action in the nature of a quo warranto, Title 7, § 1136, Code 1940, instituted in the name of the State on relation of G. M. Russell against James Edgar Young, charging him with usurping, intruding and unlawfully holding and exercising the functions and duties of the office of member of the County Board of Equalization of Morgan County, Alabama.

The complaint as amended followed substantially the statute and the demurrer thereto was properly overruled. Sharp v. State ex rel. Elliott, 217 Ala. 265, 115 So. 392; Hale v. State ex rel. Algee, 237 Ala. 191, 186 So. 163.

The defendant filed several pleas. The first two pleas are a general denial of the allegations of the information. Defendant also filed his plea '3' in an effort to conform to the rule announced by this court in Sharp v. State ex rel. Elliott, supra, which states that respondent's answer must allege the facts which are necessary to show that he lawfully holds the office and rightfully exercises its duties and powers.

This plea as amended from time to time sought to allege that the respondent was holding his office pursuant to Title 51, §§ 89 and 91, Code 1940. Section 89, Title 51, Code 1940, as amended reads in part as follows: 'During the month of August, 1943, and during the month of August of each fourth year thereafter, the court of county commissioners, or other governing body of each county, the county board of education, and the governing body of the largest municipality in each county, shall each submit in writing to the state commissioner of revenue, the names of three persons, and the governing body of each other incorporated municipality within the county shall, in like manner, submit the name of one person, all of whom are residents of the county, and who are each owners of taxable property which is located within this state, and who are each qualified electors in said county, and who are, in the opinion of said nominating body, persons competent to serve as members of the county board of equalization. * * * From each group of three nominees submitted by the county governing bodies and the county board of education and from the total group of nominees submitted by the governing bodies of the municipalities, the commissioner of revenue, within thirty days after receipt of such lists of nominees, with the approval of the governor shall appoint one person to membership on the county board of equalization so that the membership of said board shall be composed of three members, one of whom was nominated by the governing body of the county, one by the county board of education, and one by the governing body of the incorporated municipalities in the county, * * * provided, however, that the commissioner of revenue may reject any group of nominees, in which event the body nominating them shall submit additional names, one of whom shall be appointed by the commissioner of revenue with the approval of the governor.'

Section 91, Title 51, Code 1940, dealing with how vacancies shall be filled reads as follows: 'Should any person appointed to membership of any board of equalization fail or refuse to take and subscribe to the oaths required by the preceding section, within five days after being notified of his appointment to membership on said board, or shall, for any other reason herein enumerated become disqualified to serve as a member on said board, or should a vacancy on any board occur from death, resignation or any other cause, then the commissioner of revenue shall select from the remaining nominees on the list from which such original nominee was taken a person to fill the position to which such disqualified person was first appointed, or to fill the vacancy on said board. Should the remaining nominees be, for any reason, disqualified to serve on said board, then the commissioner of revenue shall request the proper nominating body to name three additional persons eligible to serve on said board and from such additional nominees a person shall be selected to fill the vacancy occasioned by the disqualification of the original nominee or nominees or other vacancy. Any appointment to fill a vacancy on any board of equalization shall be for the unexpired term only.'

Plea '3' as finally amended states substantially the following: that in August, 1947, the Morgan County Board of Education submitted a list of three means to the Commissioner of Revenue. That list contained the names of Phil M. Orr, G. M. Russell and Eugene E. Graves. It appears that the commissioner rejected said nominees as a whole and so notified the Board of Education. It does not appear, however, that the Board of Education furnished the commissioner, at that time, with any additional list. But it does appear that E. E. Graves was subsequently appointed and served as a member of the Board of Equalization of Morgan County. It also is alleged that Phil M. Orr was appointed as a member of the Board of Equalization but that his name was selected by the Commissioner of Revenue from the list of three persons submitted by the governing body of Morgan County, and that only one name remained on the original list as submitted by the Board of Education in August 1947. That on February 28, 1950, the Commissioner of Revenue advised the Board of Education that its list of nominees had been reduced to one name, and requested the board to nominate two other persons, from which nominees the Commissioner might choose a successor to E. E. Graves who had resigned. That the Board of Education submitted the names of one B. E. Braswell and this defendant and that subsequently this defendant was appointed by the Commissioner of Revenue, to the Board of Equalization.

Many grounds of demurrer were interposed to plea '3' and raised the question that the Commissioner of Revenue was without authority under Title 51, § 91, Code 1940, to call for additional nominees so long as there remained a qualified person on the list of nominees as originally submitted by the Board of Education and that the Board of Education was without authority to submit additional nominees for the same reason.

Appellant earnestly insists that there was error in the trial court order sustaining demurrer to plea '3' and that it was the legislative intent that the Commissioner of Revenue in making appointments to the boards of equalization always have a choice of three...