The Birmingham age-herald., 1910-09-20
TEACH RULES THAT
 SEALS HOLDS OVER
Opinion Against Yielding in
 Controversy
MooRE's CONTENTION
Hold Over for Long Term Be- cause He Was Appointee
 of Governor

| Who will be Birminghams other police l commissioner, The city attorney, in a full opinion given out yesterday, de- clared that Carl Seals is entitled to hold over for the long term. F. B. Yielding ia considering the matter of contesting, and Kirk Moore has the authority of some of the best lawyers in the city that he can oust Seals.
 Moore received 90 votes in the election yesterday that many voters having scratched the name of Drake, the regular nominee. and voted for Moore. On the claim that Seals canont hold over on governors appointment any longer than the next election, and that Yielding, hay ing qualified for the short term, has no right to the long term, Moore, having re- ceived the next highest number of votes
 in the recent primary, thinks that he has the right to have his name written on the ticket, and since 1t was written on the ticket by 90 voters, his lawyers be- lieve they can put him in the office
 But City Attorney Thatch declares that the governor has the right to appoint for d lull IeIUl, except III JhdiSAhiS opPDiiie ments. Here is his decision:
 Birmingham, Ala, September +, 1910. MT. H. s. Ryall, Secretary to the Mayor,
 City:
 Dear Sir: In reply to your inquiry as to who is entitled to hold over(for the long term as police commissioner of the city of Birmingham, I beg to advise you as follows:
 The police commission is now, and was at the time of the general municipal eleo- ton, in 1908, organized under sections I231-32 of the Code of Alabama, 1907 (sec- tion 179 of the Municipal Code). which provides for the election of two commits sioners in addition to the mayor, one for the term of two years and one for the term of four years
 It seems that in the democratic pri- nayr held in the city of Birmingham in
 1908 to nominate the democratic candi- dates for municipal offices to be elected at the general election on the third Mon- day In September. 1908, no distinction was made among candidates for police commissioner between candidates for the two-year term and the four-year term of candidates, running simply for police commissioner with two to be elected, neither was this distinction made in the general election held on the date above mentioned.
 The nominees of the two different par ties offering temselves as candidates for the police commission, two to be elected. After this election, in my Judgment, il was within the jurisdiction, and it be- came the duty, of the City Council of Birmingham, to draw the distinction and decide which of the two men elected po- lice commissioners should hold for the short term of two years, and which should hold for the long term of four years. This the City Council did by reso- lution at it's special meeting of Septem- Der 22, 1908, held for the purpose of can wasting the returns and declaring the re- suits of the election held on the third Monday in September, 1908, prior thereto declaring that Maj Carl H. Seals, having ceived the highest number of votes in said election, was entitled to the long term and that MT. F. B. Yielding, hay ing received the next highest number of votes. was entitled to the snort term, and certificates or elecllOn were lSSueu bs Major Seals and MT. Yielding according ly. Thereafter John Matthews as relator filed quo warranto proceedings to oust Major Seals from the office of police commissioner on the grounds that he was not a resident of the city Of Birmingham at the time of his election to said office by reason of the fact that that portion of Birmingham which is and was known as Mountain Terrace, which had there- tofore been annexed to the city of Bir- mingham by proceedings under the gen eral law, had been illegally annexed The contention of MT. Matthews also up- held by the supreme court of Alabama on appeal taken by Major Seals, the cast styled:
 Seals vs State ex rel. Matthews, and being reported in the fifty-frst South ern Reporter at page 337. Prior to this decision of the supreme court, and since his election, Major Seals acted as po- lice commissioner of the city of Birming- ham under and by virtue of the certih- cate of election issued to him by the City Council of Birmingham, and was therefore, a de facto officer with the rights. powers, duties and liabilities or an officer de jure. Therefore, when a va cancy occurred by reason of the fact that Major Seals was illegible on account or non-residence at the time or his elecuon the vacancy occurred in the long term and. in my judgment this contingency was provided for by an act of the legis- lature of Alabama approved August e5, 1909, entitled, "An act to provide for the filling of any vacant office or the state or any county, or any municipality, when there is no provision of law for filling such vacancy. Be it enacted by the leg isIature of Alabama:
 .1. That when any office of the state of any county. or municipality thereof, is vacant from death. resignation, remov- al from the municipality. county, or state. or because the former incumbent absconds. or because an incumbent has been removed for ineligibility, or when the office is vacant from any other cause and there is no way provided by law for the filling of such vacant office. the gov ernor Is hereby empowered and required to appoint a qualified person to fill the unexpired term of such office Upon the decision of the supreme court that Major Seals was ineligible to hold the office of nolice commissioner of the city of Birmingham. Governor Conner.