Hooper v. State Ex Rel. Fox

The right of holding office by Mr. A. B. Hooper, Jr., a jury commissioner of Marshall county, is challenged by quo warranto. Code, § 5453.

Appellant Hooper was appointed by the Governor as one of the jury commissioners in said county, and his right to hold office is questioned on the ground that he was not a qualified elector, in that he did not pay poll tax as required by statute. Appellant's excuse for not paying poll tax for the years 1918 to 1920, inclusive, was that he served in the military forces of the United States from the 15th day of May, 1918, until the 25th day of June, 1919, and was honorably discharged from such service; that he was not required by law to pay poll tax for said years, being exempt by the amendment to the Constitution of Alabama, section 194 1/2, exempting soldiers and sailors. Appellee contends that this alleged amendment never became a part of the Constitution, for the reason, among others, that the Legislature delegated to the Governor the duty to appoint a day upon which the election on such amendment would be held, and which was done by the Governor; wherefore, appellee says that the proposed amendment was voted upon and received an affirmative vote at the election so called, but was never legally submitted or adopted as provided by the Constitution.

In my dissenting opinion in Johnson v. Craft, 205 Ala. 386,87 So. 375, 396, 397, I sought to prove by controlling authorities the distinction between legislative power that it may not be delegated, and delegable legislative discretion or administrative functions (205 Ala. 386, 87 South. pp. 384-397); that there is no express provision in the Constitution against the delegation of the administrative function to the Governor to fix the date of the election on proposed amendments to the Constitution, and that such action by the Legislature as to the Road Bond Amendment (Acts 1919, p. 787; Seay's Const. Amendments. p. 14) and the Soldiers and Sailors Poll Tax Exemption Amendment, section 194 1/2, was within the constitutional provisions governing such matter (Sou. Ry. v. St. Clair Co., 124 Ala. 491, 494, 27 So. 23); and that "by the instant resolution or act the Legislature did appoint an exact date for the holding of the election on the proposed amendment, within the time specified in the Constitution, not less than three months after its final adjournment and before the next succeeding general election." Johnson v. Craft,205 Ala. 386, 87 South. pp. 396, 397.

The Constitution contains the provision that the Legislature shall order an election, etc., to be held (section 284) "either at the general election next succeeding" or upon "another day appointed by the Legislature," and that notice shall be given for the time required "next preceding the day appointed for such election"; and that "on the day so appointed an election shall be held" for the vote of the qualified electors of the state upon the proposed amendments. It is noted that the words "day appointed" appears three times in the section. The able analysis of the use of this word in the Constitution is made by counsel for appellant as follows:

"If the election is held upon the next general election, it cannot be doubted that it is held upon a day appointed by the Constitution itself. This is self-evident and beyond argument, but it is rendered absolutely certain by the designation by the Constitution itself of the day of the 'next general election', as a day appointed. This appears clearly from the succeeding portions of this section. The notice provided for by publication for eight successive weeks, applies, of course, to elections held at the time of general elections as well as to special elections. This notice, in the language of the Constitution, must be published for 'eight successive weeks next preceding the day appointed for such election.' And, since the requirement applies to elections held at the general election, the designation of such day as 'the day appointed,' is a declaration by the Constitution that its designation of the general election as a day on which an election on said proposed amendment may be held, is the appointment by it of such day. The Constitution proceeds in the next sentence in this section to say: 'On the day so appointed an election shall be held,' etc., thus clearly and explicitly and in terms referring to elections held on the day of a general election, as elections held on a day appointed, and since such elections, if held on the day of a general election are necessarily held under the direction of the Constitution exclusively, they are, if held on a day appointed, held on a day appointed by the Constitution."

From this definition in the Constitution of a day "appointed," as thrice used in section 284, it must follow that the Legislature "did appoint an exact date for holding" the election on the proposed amendment within the time specified by and in the Constitution, whether the date be that of the general election next succeeding the session of the Legislature or upon another day appointed by the Legislature.

In my judgment, it cannot be said that the words "day appointed" in said section — with reference to the duty of the Legislature in the "alternative performance of the duty" of appointment — were used with a "more restricted meaning" as relating to the one clause than in the other: (1) "Order an election * * * to be held * * * at the general election next succeeding * * * or upon another day appointed by the Legislature," and (2) "on the day so appointed" an election shall be held. The word "appointed" as used in that section of the Constitution must be given the same meaning, it not appearing from the context to have had a different meaning. Mayor v. Klein, 89 Ala. 461, 464, 7 So. 386, 8 L.R.A. 369. If the proposed amendment was to be voted upon at the next succeeding general election, it was the day appointed by law — though not otherwise designated or indicated in the act or resolution of the Legislature proposing the amendment, by the calendar, stating the year, the month, and the day thereof — though such date of "the general election next succeeding the session of the Legislature" be fixed or indicated by other statutes of the state. Dates for special elections designated by the Governor (as I tried to point out in my dissent to Johnson v. Craft) are fixed by the Legislature. That is to say, the date of the special election (Johnson v. Craft, 205) Ala. 386, 87 So. 396-398), on instant amendment was held on a date designated and appointed by the Legislature in manner indicated in section 2 of the Act of September 26, 1919, p. 724, declaring that it shall be the duty of the Governor to fix the date of said election and to give notice of the election by proclamation for the time required by the Constitution.

When, therefore, by section 2 of the said act proposing the amendment, the Governor was clad with the administrative function of indicating the calendar day on which the election should be held, within constitutional limits, and in further prescription contained in section 3 of the act that "at said election, to be held as herein provided, the qualified electors shall vote upon the said amendment," the Legislature did appoint a day for holding the election, in strict conformance with constitutional requirements. Johnson v. Craft, 205 Ala. 386,87 So. 398, 399. The several dissenting opinions heretofore filed by Justices Somerville and Gardner and the writer in Johnson v. Craft fully answer the several assignments of unconstitutionality now urged against the proposal and adoption of the Soldiers and Sailors Poll Tax Exemption Amendment. Acts 1919, p. 724; section 194 1/2, Seay's Const. Amendments, p. 10.

I am of the opinion that the judgment of the circuit court excluding appellant from office was laid in error, and that the judgment of ouster should be set aside and judgment rendered restoring him to office.

Mr. Justice GARDNER concurs in the foregoing observations and further urges the constitutional adoption of the amendment, in which I concur.