Betts v. Ballentine

MAYFIELD, J. This case is to determine the proper custodian of the key to the jury box for Madison county. The judge of the law and equity court of that- county is the proper custodian. The question to be decided depends solely upon whether appellant or appellee was judge of such court at the time the proceeding was instituted, the point of the dispute being as to when the term of office to which the appellant was appointed ended, and when the term to which -the appellee was elected began. The appellant Avas- appointed judge under the provisions of the act of February 26, 1907 (Laws 1907, p. 189), creating the law and equity court for Madison county. The provisions of the act relating to the term of office and applicable to this case are as follows: “The judge shall be appointed for this court by the Governor to hold until the general election in 1910, and until his successor is elected and qualified. * * * The term of the office shall be six years and until his successor is elected or appointed and qualified and a judge shall be elected at the general election in 1910, and every six years thereafter. The judge shall take and file the oath of office required of circuit judges.” [330] At the time this proceeding was instituted by appellee he had been elected to the office at the general election held in 1910, and had qualified by making bond and taking the oath of office. He was therefore clearly within the letter and spirit of the act, and was entitled to assume the duties of the office. It is also equally certain that this election and qualification of the appellee to discharge the duties of the office terminated the right of the appellant to discharge such duties. Unquestionably the act did not contemplate that there could be two judges of such court at the same time. The appellant was appointed by the ■ Governor under the provisions of the act quoted above and was therefore entitled to hold office, under the language of that statute, “until the general election in 1910 and until his successor” was “elected and qualified.” It is shown that the appellee was elected at that election, and was the successor of appellant, and that he had qualified and was discharging the duties of the office. This being true and it being conceded that the judge of the court was entitled to the custody of the key to the jury box — the subject of dispute — it was the duty of appellant to deliver such key to the appellee as his successor in office and the judge of the circuit court properly directed appellant so to do. There is nothing in any of the provisions of the Code to which we have been referred by counsel, nor in any other, of which we know, that changes the provisions of the local act in question, as to the ending of appellant’s term of office, or as to the beginning of that of the appellee. While section 1463 of the Code of 1907 includes judges of inferior courts it also expressly provides that the terms of office fixed in such section, for such judges, shall not govern in cases where the terms of office are “otherwise provided by law.” [331] The act under consideration does not provide otherwise than that the appointee (who was the appellant in this case) should hold office “until the general election in 1910, and until his successor” was “elected and qualified.” It is conclusively shown that this term had expired before this proceeding was instituted, that the appellee was the successor, and that the term to which he was elected had begun. . It was never intended that section 1463 of the Code, above referred to, should prolong the term of office of an appointee as judge of an inferior court, or delay the. right of a judge elected to fill a succeeding term of the same office, when the terms of both were fixed by the act creating the court. ■ It has frequently been held by this court that the phrase, “until their successors are elected and qualified,” or similar ones, so often found in our Constitution and statutes, do not prolong the terms of such offices beyond a reasonable time after the election or appointment of their successor, but that such a phrase is intended to cover only such reasonable time as will enable the successor to qualify; nor does such phrase fix any definite’time at which the successor shall qualify, nor does it forbid him, after he has qualified, to assume the duties of the office provided the term of his predecessor in office has terminated. The inferior courts of law and equity of this state are of statutory, and not constitutional, origin. While the Constitution authorizes them, they are and must be of statutory creation; and the Constitution provides that the judges of such courts may be either appointed or elected in such manner as the Legislature may prescribe. The local acts creating such courts' as the law and equity court of Madison county have sometimes provided that the judge of such court should be ap [332] pointed by the Governor, sometimes that he should he elected by the Legislature, and sometimes hy the voters within the territorial jurisdiction of such court. The terms of office of such judges have not been uniform, nor have they always been that of the circuit judges or chancellors. These matters are usually controlled by the local statutes creating such court. S'uch was clearly the intention of the Legislature, as to the term of office of the judge of the law and equity court of Madison county.- Looking to that statute, we have no hesitancy in saying that if the matters set up in the petition in this case are true, the appellee was the judge of that court, and was therefore entitled to the custody of the key to the jury box at the time this proceeding was instituted, and at the time of the hearing of the case in the lower court, and the rendition of the judgment in the lower court. As before stated, we think that none of the provisions of the Code were intended to take the place of these provisions in the local statutes as to the term of office of the judge of that court. It therefore follows that the judgment of the lower court was proper, and it is in all things affirmed. Affirmed. Simpson, Anderson, and McClellan, JJ., concur.