Tilley v. State , 230 Ala. 22 ( 1935 )

As we understand, this is not a direct proceeding to test the title or respective authority of Horton, the retiring judge, and Griffith, his successor, but involves a collateral attack on the authority of Judge Griffith.

Section 2567 of the Code of 1923 fixes the term of office of judges of the Supreme Court, circuit judges, and others therein mentioned at six years from the first Monday after the second Tuesday in January next after their election. Regardless of the case of Oberhaus v. State ex rel. McNamara, 173 Ala. 483,55 So. 898, which deals with the term of the Governor, under section 2566, the judges have customarily assumed office on Monday after the second Tuesday in January as was done by Judge Griffith. But it is unnecessary for us to decide whether the Oberhaus Case, supra, is sound or would control in a contest between the outgoing and incoming judges, as Griffith assumed the office after having been duly elected and presumably under a commission and had such right and color as to render him a de facto officer as distinguished from an usurper or intruder. Mechem on Public Officers, §§ 317 to 321, inclusive; Williamson McArthur v. Woolf et al., 37 Ala. 298.

We therefore hold, and so advise, that the drawing of the jury and other acts performed by Griffith were not invalid.

GARDNER, BOULDIN, and FOSTER, JJ., concur.