Birmingham age-herald., 1895-06-15
SECOND EDITION. JUDGE MONTGOMERY OUT Supreme Court Afirms DeciS- ion of the Lower Court, FULL TEXT OF THE OPINION History of the Case-There Will Be Many Ap- plicants for the Place -Mr. Mont
 gomery Submits.
FULL TEXT OF THE OPINION

Montgomery, June 14-(Speeial)- following is the full text of the decision in the Montgomery case:
 The state of Alabama ex rel, Enslen vs.
 Joseph H. Montgomery Appeal from
 Jefferson circuit court.
 Coleman J.-The proceeding is by in formation in the nature of quo war ranto, and is prosecuted for the purpose of inquiring into the legality of the claim of the respondent to- the office of judge of the po- lice court of Birmingham. Section 3170 authorizes the proceeding when any person usurps, intrudes into or un- lawfully holds. or exercises any public office, civil or military, or any franchise within this state, or any office in cor poration created by the authority of this state" Section S171 of the code, as amended by act of the legislature, 1892 93, page 7S9. provides that it may be brought without the direction of the judge on the information of any per- son giving security for the cost of the action, etc Section S172 provides that when the action is brought on the infor- nation of any person his name must be joined as plaintiff with the state. These provisions of the code seem to have been fully observed and complied with.
 Section r. article 4; of the senator or representative shall. dur ing the term for which he shall have been elected, be appointed to any civil office of profit under this state, which shall have been created, or the emoiuments of which shall have been in- creased during such term, except such of- fees as may be filled by election of the people." 1lhe 9information states and ayers that the respondent was d repre- sentative of Jefferson county, Alabama, for the term of the legislature, begin ming on the 18th day of Novem be- 1884 and d111sino ot tapr, and -l, .f. A., respondent was a member the legisla- ture created and established an inferior court of criminal jurisdiction in the city Of Birmingham, defined it's powers and extent of its territorial jurisdiction and provided for the election of a judge by the legislature. The act of the legislature is referred to in the information to show the character of the court and that the office of the judge thereof "is civil office Of profit under this state" within the meaning of the constitutional provision. The information further ayers and states that the respondent, during the term and while representative, was elected judge Of the court by the legislature of which he was a member thus created and es- abolished, and that soon after his cleo ton he resigned his seat as member oa the legislature and entered into said office as judge, and exercised and continues to exercise the powers, privileges and duties thereof contrary to the constitutional provision. and that he is unlawfully hold ing and exercising said office. The pur- pose of the information it not to ascer- tain whether some one else has better right to the office than the respondent. No judgment of induction into the office IS sought. There is no element of a con- tested election in the case. The informa- ton is full and clear, and though there are several grounds of demurrer to The information there Is but one which in our opinion requires the consideration of this court. The demurrer raises the question as to whether the office of judge of the police court of Birmingham is "a civil office of profit under this state" within the meaning of section IT, article of the constitution, supra.
 Similar constitutional provisions exist in many, If not all of the states of the un- lon, and the question has been before the various courts many times as to what constitutes civil office of profit within the constitutional provision. In Spelling on Extraordinary Relief, volume ?, sec ton 17S0, it is said "There are three principal tests for determining whether one performing duties of a pub lie nature is public officer in the sense of subjectine his incumbency or employ n1ent to quo warranto proceeding. l First. whether the sovereignty, either directly through legislative enactment or executive appointment, or indirectly as through a municipal charter, is the source Of authority; second, whether the duties pertaining to the position are of a public eharacter-that is, due to the community in its political capacity, and third, whether the tenure is fixed and permanent for definite period fixed by law unless for neglect of duty or mal- feasance, or subject to termination at the will of others without the assignment of cause"
 Dillon, on municipal corporations. sec tion 5S discussing the question of off, cers and offices, uses the following lan- guage: And here it is important to bear in mind the before mentioned dis tinction between state officers-that is officers whose duties concern the state at large, or the general public, although