Opinion
1 Div. 727.
May 26, 1932.
Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.
Frank S. Coffin and Armbrecht, Hand Twitty, all of Mobile, for appellant.
Respondent was not legally selected as judge of the juvenile court because elected by the commission by a secret ballot and not by viva voce vote of the members, in violation of the Constitution. Const. 1901, § 179; Const. 1875, § 2, art. VIII; State ex rel. Long v. Mixon, 142 La. 714, 77 So. 512; Elliott v. Burke, 113 Ky. 479, 68 S.W. 445; Reid v. Gorsuch, 67 N.J. Law, 396, 51 A. 457; State ex rel. Harris v. Tucker, 54 Ala. 205. An election by juvenile court commission is an election by persons in a representative capacity. Gen. Acts. 1927, p. 653. The Legislature used word "appoint" in section 2 of the Act of 1927, p. 655, as synonymous with the word "elect" as used in section 179 of the Constitution. 4 C. J. 1404; Const. U.S. § 1, art. II; McPherson v. Blacker, 146 U.S. 1, 13 S.Ct. 3, 36 L.Ed. 869; State v. Williams, 60 Kan. 841, 58 P. 476; 20 C. J. 56; Odell v. Rihn, 19 Cal.App. 713, 127 P. 802; Hill v. City of Rector, 161 Ark. 574, 256 S.W. 848. Section 179 of the Constitution applies to all elections of judges of all inferior courts. State v. Sayre, 118 Ala. 1, 24 So. 89; Const. 1861, art. 5, § 11, art. 8, § 2; Const. 1865, art. 6, § 11; Const. 1868, art. 7, § 7; Const. 1875, art. 6, §§ 12, 13, art. 8, § 3; Const. 1901, §§ 152, 153. State v. Sayre, supra, is not adverse to appellant's contention. Southern R. Co. v. St. Clair County, 124 Ala. 491, 27 So. 23; Const. 1875, art. 7, § 44, art. 8, § 2.
J. Gaillard Hamilton and Stevens, McCorvey, McLeod, Goode Turner, all of Mobile, for appellee.
The Legislature has power to establish inferior courts, the judges of which may be elected or appointed in such manner as the Legislature may prescribe. Const. 1901, §§ 139, 153; Const. 1875, art. 6, § 13; State v. Sayre, 118 Ala. 1, 24 So. 89; Perkins v. Corbin, 45 Ala. 103, 6 Am. Rep. 698; Ex parte Pruitt, 207 Ala. 261, 92 So. 426; Ex parte State, 197 Ala. 570, 73 So. 101; Ex parte State, 71 Ala. 371; Sanders v. State, 55 Ala. 42; Betts v. Ballentine, 172 Ala. 325, 55 So. 814; McGehee v. State, 199 Ala. 287, 74 So. 374; State v. Dillard, 196 Ala. 542, 72 So. 56. The act does not prescribe the method of appointment, and the use of the ballot by the commission was authorized. Murdoch v. Strange, 99 Md. 89, 57 A. 628, 3 Ann. Cas. 66; 2 McQuillin-Mun. Corp. § 463; 56 C. J. 287. Section 179 of the Constitution is not applicable; it relates to elections and not appointments. Selection of a judge by the commission is essentially an appointment. Gen. Acts 1927, p. 655; Bouv. Law Dict. (3d Rev.) vol. 1, p. 215, Appointment; 9 R. C. L. 977; State v. Payne, 224 Ala. 223, 139 So. 99; Head v. Hood, 214 Ala. 353, 107 So. 854; Graham v. Mobile, 17 Ala. App. 19, 81 So. 355; Town of Nortonville v. Woodward, 191 Ky. 730, 231 S.W. 224; State Board of Pharmacy v. Bellinger, 138 App. Div. 12, 122 N.Y. S. 651. Sturgis v. Spofford, 45 N.Y. 446; Brown v. Bunselmeyer, 101 Misc. Rep. 625, 167 N.Y. S. 993; People v. Ahearn, 196 N.Y. 221, 89 N.E. 930, 26 L.R.A. (N.S.) 1153. The commission were not in a "representative capacity" within section 179. Bouv. Law Dict., Vol. 3, page 2900, Representative; Webster's Dict., Ibid. Section 179 does not relate to an election not required by the Constitution, or for a purpose or office outside the Constitution. State v. Crook, 126 Ala. 600, 28 So. 745; Moulton v. Reid, 54 Ala. 320; Hanna v. Young, 84 Md. 179, 35 A. 674, 34 L.R.A. 55, 57 Am. St. Rep. 396; McMahon v. Mayor, etc., of City of Savannah, 66 Ga. 217, 42 Am. Rep. 65; State v. Dillon, 32 Fla. 545, 14 So. 383, 22 L.R.A. 124; Bates v. Adamson, 2 Cal.App. 574, 84 P. 51; Fox v. McDonald, 101 Ala. 51, 13 So. 416, 21 L.R.A. 529, 46 Am. St. Rep. 98; In re Opinion of the Justices, 216 Ala. 136, 112 So. 317; State v. Bowles, 217 Ala. 458, 116 So. 662; Mobile County v. Kimball, 54 Ala. 56; Byrd v. State, 212 Ala. 266, 102 So. 223; Ex parte Lusk, 82 Ala. 519, 2 So. 140; Lane v. Kolb, 92 Ala. 636, 9 So. 873; Board of Rev. v. Barber, 53 Ala. 589; Andress v. Roberts, 18 Ala. 387; Kimmons v. Jefferson County Board, 204 Ala. 384, 85 So. 774; 15 C. J. 486. It would be properly applicable to constitutional elections such as those by the Legislature. Const. §§ 51, 83, 105, 115; State v. Kennon, 7 Ohio St. 546.
The question involved in this case is the validity of the selection of the appellee as judge of the juvenile court created by the act approved September 9, 1927, creating said court and his right to continue in and exercise the functions of said office.
Section 2 of the act provides: "There is hereby created a Juvenile Court Commission which shall be composed of seven (7) resident citizens of said counties who shall be chosen on account of their knowledge, interest in, care, education and welfare of youths of both sexes and who shall serve without compensation. The Board of Revenue and Road Commissioners, or by whatever name they shall be known of said counties shall appoint three members of the said Juvenile Court Commission who shall hold office at the pleasure of the said Board of Revenue and Road Commissioners, or by whatever name they may be known. The Board of City Commissioners, or other governing board of such cities or towns in which said courts are established shall appoint three members of said Board who shall hold office at the pleasure of said Board or Governing Board of such cities or towns in which said Courts are established. The six members of the Juvenile Court Commission thus appointed shall choose the seventh member of the said Juvenile Court Commission, who shall hold office for five years or until his successor shall be chosen. Women shall be eligible to membership on said Juvenile Court Commission. Four members of said Commission shall constitute a quorum. Said Commission shall annually choose its President, vice-President and Secretary who shall hold office until their respective successors have been elected and qualified. The Secretary shall record its proceedings and its officers shall perform the usual duties indicated by their titles. Said Juvenile Court Commission shall perform, among others, the following duties: (a) They shall appoint the Judge of said Juvenile Court; (b) shall appoint all Probation Officers and servants of said Court, except the Clerk of said Court and said Probation Officers and servants shall hold their places at the will of the Commission. All appointments shall be made subject to the approval and with the consent of the judge of said Court; (c) and they shall exercise such powers and duties as may be now or hereafter imposed by Law and such as are necessary or proper for performing the functions above stated; but they shall not any of them preside over the Court or be its Clerk or other officer except as above stated." Acts of 1927, pages 654, 655. (Italics supplied.)
The record shows that at a regular meeting of the juvenile court commission created by the act, held on the 25th day of May, 1931, a quorum being present, the commission proceeded to select from the applicants a judge of said court, by ballot. Each member was furnished a slip of paper on which the name of the applicant he thought should be selected was written. These ballots were then taken up and counted. The first ballot resulted in no selection, and another ballot was, in like manner, taken, and the appellee received four votes and the relator two.
The minutes of the meeting then recite: "The Chairman announced the result, formally, as four (4) votes for Mr. J. G. Hamilton, a majority of those present, all having voted, and declared Mr. J. G. Hamilton elected Judge of the Juvenile Court of Mobile County, Alabama, for the next legal term. * * * At the suggestion of the Chair, the Secretary was unanimously instructed to inform Mr. J. G. Hamilton of his election as Judge," etc.
The appellant's contention is that the proceedings of the commission contravened the provisions of section 179 of the Constitution, which provides: "All elections by the people shall be by ballot, and all elections by persons in a representative capacity shall be viva voce."
In respect to inferior courts of statutory creation, it is within legislative competency to prescribe how and by whom the judge thereof shall be selected. Constitution of 1901, § 153; State ex rel. Winter v. Sayre, 118 Ala. 1, 24 So. 89.
The act creating the court also created "a juvenile court commission" composed of seven members, and constituting a quorum of four, and provides that "they shall appoint the Judge of said Juvenile Court," without further prescription as to the method of procedure in making such appointment. It cannot be assumed that the word "appoint" was not advisedly used, and this left the commission free to adopt their own method of agreeing on the appointee, and, in the absence of fraud, their action in the matter is not subject to review by the courts.
Section 179 of the Constitution is not applicable to the proceedings of the commission.
The ruling of the circuit court is in accord with these views, and the judgment is due to be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.