Taylor v. State ex rel. Hand

WALKER, J. — By the act of 15th January, 1852, the treasurer for Randolph and some other counties is made, eligible by the qualified voters, “at the same time, and in like manner, as sheriffs and clerks of said county;” and the commissioners’ court is authorized to make appointments for filling vacancies, “until the next succeeding general election.” — See Pamphlet Acts of ’51-52, p. 477. By an act adopted twenty-four days afterwards, the statute of 15th January, ’52, was suspended as to Randolph county, until the first of February, 1854. During the interval between the adoption and suspension of the act of 15th January, 1852, the commissioners’ court of Randolph county elected a county treasurer. The act of 15th January, 1852, was of force at the time of the election. The rule, which once prevailed in England, that acts of Parliament should be deemed to have been in force from the first day of the session, when not otherwise prescribed, does not obtain here, for reasons which are explained in the ease of the Mobile and Ohio Railroad Company v. The State, 29 Ala. 573. It results, that statutes passed at the same session are not to be regarded as having effect from the same day, or as constituting one act, because they pertain to the same subject. The act of 15th January, 1852, was of force from the date of its approval, and continued in operation, until the suspension act of 9th February, 1852, (twenty-four days afterwards,) was adopted. The appointment of a [386] treasurer was, then, made by tbe commissioner’s court óf Randolph county while the act of 15th January, 1852, was of force. The commissioners’ court had no power, at that time, to make an appointment to continue longer, than the next general election. On the 18th February, 1854, another act was passed, by which it was prescribed, that the county treasurer of Randolph county should be elected by the people. On the first Monday in August, 1854, an election of treasurer was had; but the treasurer appointed by the commissioners’ court continued in office, until the 3d February, 1855, at the expiration of three years from his appointment. Now it is manifest that, after the election on the first Monday in August, 1854, the appointee of the commissioners’ court .ceased to be the treasurer, de jure. It is unnecessary for us to in quire whether his term of service did not expire at an earlier day. Upon the election in August, 1854, the treasurer elect had a right to the incumbency of the office; and that he yielded to the claim of his predecessor, and permitted the latter to discharge the duties of the office until the succeeding February, can give him no right to extend his term of service an equal length of time into the term of his successor. We decide, therefore, that the relator in this case had a right to the office of treasurer, from his qualification, in August, 1857. Section 2655 of the Code, in reference to the proceeding by quo warranto, says: “A judge of the circuit court may direct such action to be brought, whenever he believes these acts can. be proved, and it is necessary for the public good; or it may be brought on the information of any person, giving security for thé costs, to be approved by the clerk of the court in which such action is brought.” Under the authority of this section, we decided, in the State, ex rel. Burnett v. The Town Council of Cahaba, 30 Ala. 66, that the omission to give security for the costs was a fatal objection to such a proceeding as this. The statute contemplates that the security should be given before the commencement of the suit. The security is a condition precedent to the right under the statute of instituting the proceeding. The decisions of this court, [387] before Che adoption of the Code, were in reference to an entirely different statute. — Lyon v. Long, 6 Ala. 103; Reese v. Billing, 9 Ala. 268; Whitaker v. Sanford, 13 Ala. 522. Those decisions are not applicable to the question in hand. We think we should virtually abrogate the statute, by holding that the security for costs could be given pending the suit. — Harris v. Alabama and Tennessee Rivers Railroad Co., 25 Ala 232. The court erred, therefore, in overruling the motion to dismiss for want of security for costs; and the judgment of the court below must be reversed, and a judgment must be here rendered, dismissing the proceeding, and awarding against the relator, B. J. Hand, the costs of the court below, and of this court.