DocketNumber: 6 Div. 176.
Citation Numbers: 147 So. 182, 226 Ala. 342
Judges: ANDERSON, Chief Justice.
Filed Date: 3/23/1933
Status: Precedential
Modified Date: 1/11/2023
This is a proceeding in the nature of quo warranto to test the right or title of the parties to this cause to the office of city attorney for the city of Fairfield. It is not controverted that a third party was duly and legally elected city attorney in October 1932, and that the term or fraction thereof as claimed by these respective parties relates to a period anterior to October 17, 1932. While this proceeding was instituted and tried in the circuit court before the term or fractional term involved expired, this case was not submitted to this court until November 30, 1932, and after the expiration of the term, and the question is now a moot one as a decision either way cannot remove or restore either of the parties to said office, and the appeal should be dismissed.
The case of Ham v. State ex rel. Buck,
The cases cited by appellant in opposition to the motion to dismiss the appeal are not opposed to the foregoing authorities and are readily distinguished from same.
The case of Petchey v. Allendale Land Co.,
The case, Giglio v. Barrett et al., City Com'rs,
In the opinion of the writer, under the foregoing authorities, the motion to dismiss the appeal should be sustained. The other Justices hold that the motion to dismiss the appeal should be overruled.
Section 1758 of the Code of 1923 provides that in cities of a population of more than 6,000 "there shall be elected by the council, at its first regular meeting, or as soon thereafter as practicable, a city treasurer, a city clerk, who shall be residents of such cities, and a city attorney, who shall hold office until the next general election and until their successors are elected and qualified."
The relator was elected succeeding the election of 1928, and his term was therefore fixed from then until the election and qualification of his successor at an election to be held in September, 1932. The relator was therefore an officer with a term fixed by law and not by the council or governing board of the city.
We do not think that the latter part of the section authorizing the council to elect an auditor, a recorder, or any officer required by ordinance "and except as otherwise provided, the council shall have authority to fix the terms of office" applies to the city clerk, treasurer, and attorney whose terms *Page 345 are "otherwise provided." It is conceded in argument of appellant's counsel that said section fixes the term of treasurer and clerk, but not the attorney because the two former are required to be residents of the city, but there is no such requirement as to the city attorney. We do not think this difference removes the city attorney from the term fixed for the three previously enumerated officers to wit: "a city treasurer," "a city clerk," and a "city attorney."
We are therefore of the opinion, and so hold, that the relator was an officer with a fixed term of an incorporated city in this state, removable by impeachment under section 175 of the Constitution of 1901. This being the case, he could only be removed by impeachment. Nolen v. State,
Whether or not the Legislature has prescribed a method for the impeachment of officers of incorporated cities other than mayor and intendant, as provided by section 175 of the Constitution, matters not, for this relator was an officer of an incorporated city and was removable under said section 175 of the Constitution and under authorities, supra, could not be removed in any other way.
We are cited by the appellant's counsel to the case of State ex rel. v. Thompson,
The judgment of the circuit court is affirmed.
Affirmed.
All the Justices concur.
City of Birmingham v. Graffeo , 551 So. 2d 357 ( 1989 )
State v. Baumhauer , 244 Ala. 1 ( 1942 )
Bracken v. Mullins , 263 Ala. 402 ( 1955 )
City of Birmingham v. Long , 339 So. 2d 1021 ( 1976 )
Mead v. Eagerton , 255 Ala. 66 ( 1951 )
Grant v. City of Mobile , 50 Ala. App. 684 ( 1973 )