State Ex Rel. Kernachan v. Roberts

PER CURIAM. [1] The majority of the court, consisting of Justice MAYFIELD, SAYRE, SOMERVILLE, GARDNER, and THOMAS, are of the opinion that quo warranto will lie in this ease, and the following is their opinion: It was not decided in the Sanders Case, 187 Ala. 79-84, 65 South. 378, L. R. A. 1915A, 295, nor in the Harrington Case, 76 South. 422, 1 that Sanders and Harrington were not officers. _ It was only decided that they were not the’kind of officers which were included in section 281 of the Constitution, or of section 1467 of the Code. In the Sanders Case, it was only decided that section *326 281 of the Constitution applied neither to Dr. Sanders, nor to the office which he filled. In the Harrington Case, it was only decided that section-1467 of the Code applied neither to Dr. Harrington, nor to the office which he filled. The opinion in both cases undertook to state reasons why those sections of the Constitution and of the Code, respectively, did not include or apply to Drs. Sanders and Harrington, or to the officers or positions which they filled. The opinion in both eases repeatedly stated in terms that both were officers, one a state, and one a county, officer, but not such or the kind of officer to which the section of the Constitution or of the Code respectively applied. It seems perfectly clear and certain that they were both officers, and were both public officers; but not such or the kind of officers, and that the office, position, or place which they filled was not one of the offices, within the meaning of the section of the Constitution or of the Code which was there before the court for construction. It was stated repeatedly in the opinion in both cases that they would be and were undoubtedly included within the meaning of the words “officer” and “offices,” as used in other constitutional provisions and statutes. While, of course, it may be dicta in those cases, it was expressly stated that Harrington might be an officer, and the place of “all time county health officer” might be included within the moaning of the phrase “public office” as used in our quo warranto statute. Section 5453 of the Code. The right to hold a similar office toi that which Harrington held was determined by a quo warranto proceeding under the statute in the case of State ex rel. Smith v. Justice, 76 South. 425. 2 The right to hold a similar municipal office of bacteriologist, provided for by the same system of health and quarantine laws, was tested by quo warranto in the case of State ex rel. Scholl v. Duncan, 162 Ala. 196, 50 South 265. The Harrington Case, the Justice' Case, and the ease of State ex rel. Scholl v. Duncan, were all quo warranto proceedings to test and determine the rights of incumbents to discharge or perform the functions of the public office in question. While the question .was not discussed at any length in any of tiróse cases, it was of necessity decided in all 'that the place, position, or office from which the person sought to be ousted was a “public .office,” within the meaning of the quo warranto statute. Section "5453 of the Code. Otherwise neither the trial court nor this court -would have had jurisdiction. There was no attempt in any one of the cases to confer jurisdiction on the court to test the right of the place, position, or office, -except that it was a “public office” within the meaning of section 5453 of the Code., If not a public office within the meaning of that section of the Code, then the court never acquired jurisdiction of the subject-matter. So it was necessarily decided in all three of these cases that it was a “public office” within the meaning of the quo warranto statute, though not within the meaning of other statutes, viz., section 1467 of the Code. The distinction between the meaning of the words and phrases in question, when applied to sections 1467 and 5453, was, however, pointed out in the Harrington Case, and followed in the Justice Case. In the Harrington Case, 76 South. 425, it is said: 3 “The authorities cited and relied upon by appellee are distinguishable from the case in hand for this reason, and also because many of them were dealing with offices, positions, places, or franchise rights which could be tested or inquired into in a proceeding by quo warranto; and not with the question of the eligibility of the person to fill the given place or to exercise the franchise rights. The words ‘office’ and ‘officer,’ when used in statutes of the one kind, have a different and wider and a more varied meaning than when used in those of the other. That is, the extent of the meaning of the words or phrases is not always the same, when used in different statutes relating to different subjects. For example, our statutes as to quo warranto proceedings are not exclusively against state, county, or municipal officers, but apply also to military officers and to officers of private corporations created by the authority of the state.” So it seems to us that i,t has been at least three times decided by this court that quo warranto will lie in a case like the one in question. If quo warranto will not lie to test the right to discharge the duties, and to exercise the privileges, rights, powers, and functions conferred upon health officers, then any one could intrude into the office, place, or position, and there would be no remedy against his usurpation and intrusion. The action of quo warranto has been brought to test the right to the office, place, or position of trustee of the university of Alabama. See Little v. Foster, 130 Ala. 156, 30 South. 477. The place of trustee is an office within the meaning of section 5453 of the Code, but not within the meaning of section 1467 of the Code, or of section 281 of the Constitution. Reversed and remanded. MAYFIELD, SAYRE, SOMERVILLE, GARDNER, and THOMAS, JJ., concur. ANDERSON, C. J., and McCLELLAN, J., dissent. Footnotes [1] 200 Ala. 480. [2] 200 Ala. 483. [3] 200 Ala. 480.