Appellee filed in the Circuit Court of Jefferson County a proceeding in the nature of quo warranto to challenge the legal right of appellant to serve as Chief of Police of the City of Graysville, Alabama.
The complaint, as amended, charges that defendant usurps, intrudes into, and unlawfully holds without warrant of law the office of Chief of Police of the City of Graysville, Alabama, while at the same time holding and occupying the office of Constable of Beat 38 in and for Jefferson County contrary to the provisions of § 5, Title 41, Code of Alabama, Recompiled 1958.
Plaintiffs pray in the alternative that the court will order, adjudge and decree that the respondent is illegally holding this office of Chief of Police of said City of Graysville, Alabama, and has no authority to occupy the same, and that the court shall prohibit him further from exercising any and all rights, privileges and duties of said office.
The trial court entered final judgment that the offices of constable and chief of police each is an office of profit within the meaning and inhibition of said § 5, Title 41, supra, and ousting and excluding defendant from holding said office of chief of police, the defendant having vacated this office when he qualified as constable.
We will not undertake to detail grounds of demurrer filed by the defendant to the complaint as amended, which the court overruled, nor of the demurrer to defendant's answer, which the court sustained. According to our view, the pleadings and assignments of error, as succinctly stated by appellant in his brief, present on this appeal two questions as follows:
(1) Does the chief of police of a municipal corporation organized under the laws of this state hold an "office of profit under this state"; and
(2) Does § 5 of Title 41, Code of Alabama, Recompiled 1958, deprive a person of a right granted and guaranteed him by § 280 of the Constitution of Alabama of 1901, i. e., may a person occupy the office of constable and also hold another office of profit under the state at one and the same time?
A very informative and interesting history of the origin and development of municipal government as applied to cities and towns, authored by the late and eminent Justice deGraffenried of the Supreme Court, appears in the case of State ex rel. Wilkinson v. Lane, 181 Ala. 646, 62 So. 31.
Counties and cities are political subdivisions of the state, each created by sovereign power in accordance with sovereign will, and each exercising such power, and only such power, as is conferred upon it by law. Trailway Oil Co. v. City of Mobile, 271 Ala. 218, 122 So.2d 757.
Municipalities are but subordinate departments of state government. Ex parte Rowe, 4 Ala.App. 254, 59 So. 69 .
The legislature has granted cities and towns in Alabama certain broad and comprehensive police powers which are enumerated in Articles 4 and 5, §§ 485 et seq., 491 et seq., Title 37, Code of Alabama, Recompiled 1958.
Also, many other powers have been granted to municipalities by the legislature respecting the welfare of the residents and other people within the corporate limits and police jurisdiction of the corporation. Title 37 contains many legislative laws that regulate and grant or deny authority to municipal governing bodies with respect to their duties and powers.
Among these authorizations is § 407, Title 37, Code of Alabama 1940, which reads as follows:
Subsequent sections authorize the municipal governing body to fix salaries and emoluments of these officers.
§ 400, Title 15, Code of Alabama 1940, makes it a misdemeanor for any official of a city or town of Alabama to fail, refuse or neglect to comply with any order or direction of the governor of Alabama to enforce the laws and preserve the peace of Alabama.
§§ 152 and 154, Title 15, Code of Alabama 1940, authorize policemen to make arrests.
So it appears from above that a policeman has the duty of not only enforcing municipal ordinances or bylaws, but he has the responsibility of enforcing state criminal laws and is charged with the duty of making arrests for such violations.
In the case of Hall v. City of Shreveport, 157 La. 589, 102 So. 680, the Supreme Court of Louisiana, in an action brought under the Workmen's Compensation laws of that state, to collect compensation for a widow and minor children of a policeman who was killed in the discharge of his duty, held that the policeman was an official of the city and not an employee or servant of his employer. The court said:
The court further held that the word "official," which was used in the exclusionary provision of the Workmen's Compensation Law, was synonymous with the word "officer."
In In re Opinion of the Justices, 254 Ala. 158, 47 So.2d 591, the court observed as follows:
We further observed:
We also observed in Opinion of the Justices, 244 Ala. 386, 13 So.2d 674, that "Office of Profit" means a public office.
It is our opinion that the Chief of Police of the City of Graysville, exercising as he does the sovereign powers of government in the performance of his duties, is a public officer and holds an office of profit.
The further question presented is whether he holds an office of profit "under this state," as those words appear in § 280, Constitution of Alabama 1901, and also in § 5, Title 41, supra.
The word "under" is defined (along with other definitions) in Funk & Wagnalls New Standard Dictionary, as "By virtue of; authorized, substantiated, attested, or warranted by; as under the authority of the United States Constitution."
The late and eminent Justice Coleman, speaking for the Supreme Court of Alabama, in the case of Montgomery v. State ex rel. Enslen, 107 Ala. 372, 18 So. 157, held that a police judge of the City of Birmingham, created by an Act of 1894, was a civil office of profit under the state and within the Constitution, Article 4, § 17, prohibiting one from holding any office of profit under this state, unless elected thereto by the people, created by the legislature when he was a member thereof.
In view of the fact that the City of Graysville, as do other cities and towns of Alabama, derives its creation and continued existence from the legislature, and the office of chief of police exists by legislative authority, the occupant of which is charged by legislative direction with the duty and responsibility of enforcing state laws as well as municipal ordinances, all to the protection of the general public, and to promote its general welfare, we hold that the office of chief of police is a public office of profit under the state.
We are also of the opinion that the office of constable, Beat 38, Jefferson County, to which the occupant is elected by the people with a fixed term and fees fixed by law, commonly considered a county office, is an office of profit under the state.
We next address our observations to question 2, supra, which this appeal presents. The progenitor of § 280, Constitution 1901 (Article XVI, § 1, Constitution of 1875), is as follows:
There is a marked similarity between Article XVI, § 1, Constitution of 1875, and § 280, Constitution of 1901. The latter reads as follows:
In the case of Southern Ry. Co. v. Dickens, 163 Ala. 114, 50 So. 109, which involved the issuance of a summons and complaint by a justice of the peace, who at the same time held the office of deputy sheriff, there being no constable in the beat, the late Justice McClellan, a very learned jurist, observed:
The Constitution is the supreme law of the state, and to it all rules of evidence, procedure, and expediency in conflict with its mandates and prohibitions must yield. Banks v. State, 207 Ala. 179, 93 So. 293 , 24 A.L.R. 1359. Also, see the opinion of this court in Newton v. City of Tuscaloosa, 251 Ala. 209, 36 So.2d 487, to the same effect.
The Constitution is the supreme law, limiting the power of the legislature and binding departments of State government and the people themselves subject only to restraints resulting from Federal Constitution and the people themselves. State Docks Commission v. State ex rel. Cummings, 227 Ala. 414, 150 So. 345.
In construing the Constitution, the leading purpose would be to ascertain and effectuate the intent and object originally intended to be accomplished. State v. Birmingham Southern R. Co., 182 Ala. 475, 62 So. 77; Railroad Commission v. Alabama Great Southern R. Co., 185 Ala. 354, 64 So. 13, L.R.A.1915D, 98.
We said in the case of Finklea v. Farish, 160 Ala. 230, 49 So. 366, 367, as follows:
Constitutional prohibition may be expressed or may result from necessary implication. State Docks Commission v. State ex rel. Cummings, supra.
The exceptions specified in the inhibitions of § 280, supra, pertain to minor offices that are frugal in emoluments and financial rewards to the occupants if honestly administered. In 1875 and 1901, when the exceptions were written into the Constitution that prohibited a person from holding two offices of profit at one and the same time under the state, the excepted officials were conveniently accessible to people whose means of transportation were largely limited to mules, horses and oxen and vehicles drawn by these animals; roads were poorly improved. Many natives were totally without transportation and were dependent upon walking to points of destination. No doubt the framers of our Constitution desired to encourage qualified persons to seek these particular offices of limited profit, hence the exceptions were included.
We concur in Justice McClellan's observation in Southern Ry. Co. v. Dickens, supra, that the exceptions were exemptions.
It is our opinion that § 5, Subsection 7, Title 41, supra, in so far as it attempts to modify and withdraw the exemptions specifically named in § 280 of the Constitution, supra, was abortive and offensive to the Constitution, and is without legal efficacy or force.
The trial court erred in overruling the defendant's demurrer to the amended petition, in sustaining demurrer to the answer, and in entering a final judgment ousting defendant from his occupancy of the office of Chief of Police of Graysville.
The trial judge, after this remandment, will enter appropriate judgments on the pleadings in this case that will uphold the right of defendant to the office from which he was ousted.
The foregoing opinion was prepared by B. W. Simmons, Supernumerary Circuit Judge, while serving on the Supreme Court at the request of the Chief Justice, and was adopted by the court as its opinion.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON, MERRILL, COLEMAN, and HARWOOD, JJ., concur.