State ex rel. Carter v. Price

B. F. SAFFOLD, J. The proceeding under our statute, commonly called quo warranto, when it seeks not only the exclusion of the defendant from the office in controversy, but the installation of the plaintiff, is essentially and practically a civil suit, wherein the complaint should set out the facts upon which the plaintiff relies to sustain his title to the office, and, as far as practicable, specify the objections intended to be made to the title of the defendant. The observance of this rule would save defendants much vexation and expense, by apprising them at once of what they had to defend. But the rule is not imperative, as the court is authorized to enlarge the issues. 1 Tidd’s Prac. 657. In Lee v. Loche, at January term, 1873, the objection to the defendant’s right was considered sufficiently alleged in the words, “ for the space of one week or more, last past, had used, and still did use, the liberties and franchises of solicitor,” &c., “in violation of the existing latos of said State.” The court said, “ One who uses the liberties, privileges, and franchises of a public office, without right, and in violation of the laws of the State, is a usurper.” The same authority is decisive against all the grounds of demurrer. If we were to dismiss this case with a reversal upon the demurrer alone, the litigation between the parties would be little more than commenced. The transcript puts it within our power to make a decision which will be conclusive of the cause, and a proper consideration for the public and the parties impels us to do so. The complaint discloses that the plaintiffs’ claims to the offices are founded exclusively upon their election thereto on the first Tuesday after the first Monday in November, 1871, the day of the general election of county commissioners throughout the State under the election law of October 8th, 1868. A judgment excluding the defendants is independent of the right of the plaintiffs. The suit may be maintained by one who is not a claimant of the office. Rev. Code, § 3083. Or the plaintiff, so claiming, may fail to establish his right. Rev. Code, § 3090. If the allegation of the plaintiffs’ title is such as itself shows the title to be invalid, the objection may [572] be taken by demurrer, and, when sustained, defeats so much of his suit. We know judicially that an act “ to ratify and confirm the election held on the 4th, 5th, 6th, 7th, and 8th days of February, 1868, for commissioners of revenue of Mobile, Chambers, and Baldwin counties, and providing for filling vacancies in the said boards,” approved November 28, 1868, prolonged the term of the commissioners of the counties mentioned “ until the period of four years, commencing on the day, of the next general election in the State of Alabama, shall have elapsed, and until their successors shall have been qualified.” The act of October 8, 1868, “ to regulate elections in this State,” in its eighth section, fixed the next general election of commissioners of revenue on the first Tuesday after the first Monday in November, 1871. It is, therefore, apparent from the complaint, that the term of the commissioners of Mobile county, as prescribed in the first act, had not expired at the time when the plaintiffs aver that they were elected. If it be objected to this conclusion, that vacancies might have intervened, as to which other regulations were prescribed, the answer is, the act of November 28, 1868, was not intended to continue certain individuals in office, but to extend the term of the office, and thereby to dispense with any election during such term. An appointment to a vacancy clothed the appointee with all the privileges of his predecessor, and placed him in the same status precisely. The appointment was for the unexpired term. This is the policy and the express provision of all our statutes on the subject. It is shown in the act “ to authorize the governor to fill vacancies in certain county offices,” approved November 25, 1868, which, in the second section, provides “ that the person so appointed shall be duly commissioned, and shall hold office until the day of the next general election thereafter.” The special act of November 28th, 1868, withdraws its subject-matter from the operation of the general law in respect to the next general election of commissioners, by reason of its subsequent enactment, as well as its conflict. The act of November 28, 1868, is not subject to the objection that it contains within its body a subject not mentioned in the title, and foreign to it. Section 2 of Article 4 of the State constitutition must not be so construed as to defeat the valuable purpose for which it was intended. It is one thing to prevent gross imposition on the public in the passage of laws, and another to include under.one caption or title matters germane to the principal subject. The adoption of the act is evidence of the belief on the part of the legislature that the election of commissioners in the counties specified needed confirmation. The manner in which this should be done, was clearly within [573] the legislative authority. The term for which the confirmation should be made was entirely relevant, and even necessary, in view of the designed change from the general law governing other counties. The conclusion is, the plaintiffs’ title to the offices claimed appears to be invalid from their statement of it, which is, therefore, subject to demurrer. From the facts contained in the transcript, the defendants’ title is complete, and the term has not expired. The judgment is reversed, and the cause remanded.