The Montgomery advertiser., 1904-12-07
fAvORS MIR. THOMPSON
FEE w1Ns COURT DECISION ovEI
 MIR, CONVICTION:
Judge s.yre Holds That New superin- tendent of Eudcatfon or Mcns- gomery County Does Not Take once Until 1905.


 the City Court of Montgomery yester- day dismissed the petition of G. w. Covinston, Superintendent or Eouca- tion-elect, of Montgomery county, to oust J. A. Thompson, the present Superintendent from omce py quo warranto proceedings. r
 MT. Coyinston, who defeated MT. Thompson for reelection at the Aprh primaries, was elected at the Novem- ber election. He at once mace ooho and took the oath of omce oetore the Probate Judge of MontGomery county and received his commission from the Secretary of State. The new super intendent then applied to his prede- cessor MT. Thompson, for the books and papers of the ofice. His appli- cation was refused
 Mir. Thompson held that by the act of the legislature he was authorized to remain in ofYice until Octooer, lsoo' the law had been enacted for the ex- press purpose of avoiding any school muddle by having a new superinten- dent go into office in the middle Of the school year.
 MT. Covington contended that the law provided that he should go into office as soon as he was elected and qualified.
 Quo warranto proceedings were in- stituted by Mir. Covington. An agreed statement of facts was submitted to Judge Sayre last week and the legal phase was argued at length by coun- sel.
 Judge sayre rendered an opinion as follows:
 State of Alabama, ex rel. G. W. Gov
 ington. vs. J. A. Thompson.
 Thompson was elected County Sup nf cry County on the first Monday in August 1900, in accordance with the provisions of a statute (Acts 1SsS-9. D. 676) which directed ti.at such officer should be elected at that time, and at the general election every four years thereafter. And that the term of said County Superintendent of Ed ucation shall begin on the first day of October next following such election. and that she shall hold said office un- til his successor Is duly qualified
 Prior to that time the of1ce had been filled by appointment. Under the law, as 1t existed at that time, general elections were held on the first Monday in August of every sec ond year. On October g. 1903, an act was passed to further regulate elec- tions in the State of Alabama which provided for the election of county superintendents tamong others) on the first Tuesday after the first Monday in November 1904, and every fourth year thereafter (Sec. 27. On Novem- Der, 8, 1904. Covington was duly cleo ted County Superintendent of Mont gomery County, and has since then made bond and taken the oath of of flee. The questions are, when does Thompson's term expire. and when does Covington's begin under the law as 1t is.'
 There Is no constitutional provision affecting this office and the Legisla- ture had free hand.
 "It is to be observed that the act of 1s9S-99 fixes no term of office. It pro- vides for an election every four years. | and that the term shall begin on the | first day of October next following and | shall continue until a successor Is duly | qualified.
 The authorities are almost unani- nous in holding that if a Constitution l or statute, without expressly fixing the | term of office. merely provides that an | election shall be had or an appoint | ment made annually or at stated pe- riods, person so elected or appoint ed is entitled to hold until hls suc- cessor Is elected or appointed and qual- | fled" t23 American and English En- cyclopedia of law. page 413.) Such authority. however. Is hardly needed in this case where the plain words of | the statute lead to no other conclu- l sion. There Is nothing in the case of | Lane vs. Kolb. (92 Ala, 636), and City | Council of Montgomery vs. Hughes (65 Ala, 201), as I understand them at variance with the conclusion that | Thompson is still entitled to hold of- | flee, unless of course Covington's term has already begun. In each of these | cases there was fixed term of two | years with hold-over clause. The de- | cision proceeds on the idea that the | fixed term Is the controlling fact. In | the Hughes case, which was first in | point of time, the conclusion that the | hold-over clause affected no extension | of term seems to have been reached l and out of consideration for the rights | and sureties on his official bond, which | recited the fact that his term was two | years, and on the strict letter of which l the sureties were entitled to stand.
 Some expressions which note in | Little vs. Foster, and Lane vs Kolb, | cause me to feel confidence in the as- statutes fixing terms of office need not be given the effect given 1t in the Hughes cases except where 1t follows one, two, three years. and the like.
 "Construing the act of 1S98-99. and the general election law of 1908 to- gether. when does Covington's term of office begin? There Is no contention that the general election law repeals by implication or otherwise. any part of the statute of 1S98-99. There Is no room or reason for any such conten- tion. Therefore, relators argument must amount to this-though 1t has not taken exactly this shape-that when the statute was enacted 1t fixed. as if by an express declaration of legisla- tive purposes, the first day of October. 1904, as the beginning of the term of office of the first successor of the first incumbent of the office, and the first day of October. 1908. as the beginning of the term of the second successor, and so on indefinitely through the years to come. If the Legislature had used such language. or its equivalent, 1t would need be given It's natural mean ing although 1t would involve the prop osition that a term of office may begin before the incumbent Is or can be elect ed legally. and would also Involve a necessary abandonment in practice (though not apparent on the face of the statute) of the policy. long pursued, of having county superintendents go into office on the first day of October "a policy suggested by the fact that the scholastic year, the terms of town ship trustees, the apportionment of school funds. and the assignment of school children. and the location of schools, all date from that day.
 But the Legislature. presumptively using such words as would express It's