It appears that the ruling of the court below in sustaining the demurrer to the petition was predicated of the idea that quo warranto could not serve to institute inquiry into the rightfulness of Roberts' performance of the functions "of health *Page 327 officer of Lauderdale county"; this for the reason that the position is not a "public office, civil or military," within the prescription of subdivision 1 of section 5453 of the Code, defining, among other instances, when this character of proceeding may be invoked to determine the right of one to hold or to exercise the functions and powers of such a trust. So far as presently pertinent, that section reads:
"An action [quo warranto] may be brought in the name of the state against the party offending, in the following cases: (1) When any person usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this state, or any office in a corporation created by the authority of this state. * * * "
The trial court held that the office of "health officer of Lauderdale county" was not a "public civil office" within the purview of the statute quoted.
In State v. Sanders, 187 Ala. 79, 65 So. 378, L.R.A. 1915A, 295, it was decided that the state health officer, Dr. Sanders, was not "an officer holding" a "civil office," within the contemplation of section 281 of the Constitution of 1901, relating to the increase or diminution of salaries, fees, or compensation during the current term. In Harrington v. State,76 So. 422,4 it was decided that the county health officer of Jefferson county — a position identical with that here involved — was not a public officer within the provisions of Code, § 1467, wherein it is prescribed that one to be eligible to office under the authority of this state must be an elector. While the question here under review was not considered or decided in State ex. rel. v. Justice, 76 So. 425,5 the decision in that case consists with the view prevailing in Harrington v. State, supra, as that case should be interpreted consistent with the result there attained; and, furthermore, the Justice Case affirms the effectiveness of the amendatory act of 1915 wherein it provides for the removal of such functionaries in proper cases. The primary ground of both of the decisions in the Sanders and Harrington Cases is that these functionaries are officers, so to speak, of the boards empowered by law to select them. When contemplated from the viewpoint of the government (whether state or county) the real effect of the doctrine thus accepted and applied in those particular instances was to assign the health officers (state and county) to the category of "employés" of the authorities that chose them. The provisions of the amendatory act of 1915 (Gen. Acts, pp. 653, 655), requiring the county boards of health to select the county health officer and prescribing the duties of such boards in that regard, refer to the powers and duties of the boards of health, and do not intend the definition or prescription of the character of this functionary or the rights with which one chosen thereto becomes invested. The provisions of the amendatory act, cited above, providing adequate, efficient means for the removal of county health officers by the boards of health, after hearing, contributes to confirm the view that the Legislature did not intend to constitute a county health officer a public officer; for to so affirm would involve, necessarily, the inclusion of such functionaries in the excluding provisions of the Constitution governing the removal by impeachment of county officers, thus annulling the feature of the amendatory act to which reference has just been made. It results from the premise established by the deliverances cited that the office of county health officer is not a "public civil office" within subdivision 1 of section 5453; and hence that quo warranto is not available to institute inquiry into the lawfulness of tenancy thereof as a "public civil office." It is not now claimed for the petitioner that the proceeding In quo warranto is otherwise authorized with respect to this position.
Referring to the decisions relied upon by the majority of the court, neither the Scholl-Duncan Case nor the Justice Case took any account of the question now presented, nor was any consideration given it. Hence those deliverances cannot be regarded as any sort of authority in the premises.
Little v. Foster, 130 Ala. 156, 30 So. 477, is even more plainly without influence. That proceeding, on quo warranto, was to determine the right of Foster to membership on the board of trustees of the university. The university was then and is now a "body corporate." Code 1896, § 3667; Code 1907, § 1869 et seq. The university being a corporation and the trustee being an officer of the corporation, quo warranto was an available remedy to test Foster's right to the position, under this language in Code, § 5453, quoted above: "Any office in a corporation created by the authority of this state." The health bodies, county or state, are not shown to be corporations as is the university. It seems now that the character of the "state and county health officers" is that of a sort of official chameleon; they are officers in some lights and are not officers when subjected to another light.
I would affirm the judgment.
ANDERSON, C. J., concurs in the foregoing.
On Rehearing.4 200 Ala. 480.
5 200 Ala. 483.