Books, Papers, Property and Money of Public Officers Delivered to Successor.

1544. (3128) (296) (201) (187) (148) How approved and filed. On the execution of the additional bond provided for in this article, the same must be approved and filed, with the application and requisition, with the first official bond.

1545. (3129) (297) (202) (189) (150) When sureties discharged. On the execution, approval, and filing of such additional bond, such applicants are exonerated as sureties on the bond on which such application was made, from all liability for any breach of the condition therein contained, accruing subsequently to the filing of such additional bond.

1546. (3130) (298) (203) (190) (151) When new bond goes into effect. Every such additional bond approved and filed as in this article is provided for, is binding on the obligors from the time of its approval, and subjects them to the same liabilities, proceedings, and remedies as are provided in relation to the first official bond of such officer.

1547. (3131) (299) (204) (191) (152) Effect of exoneration of surety.—The exoneration provided for in the second preceding section does not affect the previous liability of any of the obligors; but in case of the discharge of any one or more obligors, under such section, the same shall operate as a discharge of all other obligors.

(Feb. 19, 1867, p. 70.)

1548. (3132) (300) (205) (192) (153) Sureties' rights among themselves.-Whenever the sureties on either bond have made any payments thereon, on account of the principal obligor therein, they are entitled to the same remedies and recoveries against the sureties in the remaining bonds as are provided by section 1534 (3118).

ARTICLE 8.

BOOKS, PAPERS, PROPERTY AND MONEY OF PUBLIC OFFICERS DELIVERED TO

1549. (3133) (301) (206) (193) (154) Property and papers delivered to successor.-In all cases in which it is not otherwise expressly provided, when any office is vacated, except by the death of the incumbent, all books, papers, property,

Books, Papers, Property and Money of Public Officers Delivered to Successor. and money belonging or appertaining to such office must, on demand, be delivered over to his qualified successor.

Statute does not apply to executions and levies made by former officer. -Ryan v. Couch, 66 Ala., 246; Bruister v. Gavin, 127 Ala. 317 (28 So. 410). Remedy given only to qualified successors; who can compel delivery.--Beebe v. Robinson, 64 Ala. 171. Remedy not to be embarrassed by questions of mere pleading or regularity; facts tried by court and not by jury.-Chambers v. Stringer, 62 Ala. 596. Applies only to cases where title to office is free from doubt; when prohibition will not be granted to prevent proceedings.— Ex parte Scott, 47 Ala. 609. Whether liable under bond as register or receiver. Coleman v. Ormond, 60 Ala. 332. Duty of public officer to surrender to successor the property of the office; the title to a public office resides in the public.-Thompson v. Holt, 52 Ala. 499. Proceeding under this article is summary, designed to afford an expeditious remedy.-Thompson v. Holt, 52 Ala. 499. Succeeding officer bailee of former officer with respect to property in custody of official.-Bruister v. Gavin, 127 Ala. 317 (28 So. 410). Commissioner of agriculture, term of office; filling of vacancy; compelling delivery of books and papers to successor.-Lane v. Kolb, 92 Ala. 636 (9 So. 873).

1550. (3134) (302) (207) (194) (155) Proceedings to compel delivery. If any person refuses or neglects, after demand made, to deliver over any books, papers, or property as required in the preceding section, his successor may make complaint thereof to the judge of the circuit court, or judge of the probate court of the county in which the person refusing resides; and if such officer is satisfied by the oath of the complainant, and such other evidence as may be offered, that any such books, papers, or property are withheld, he must grant an order requiring the person so refusing to show cause before him, on a day and at a place named in such order, why he should not be compelled to deliver the same.

To compel justice of the peace to turn over books.-Tillman v. Porter, 142 Ala. 372 (38 So. 647).

1551. (3135) (303) (208) (195) (156) Officer discharged on affidavit. At the time so appointed, or at any other time to which the matter may be adjourned, a copy of such order having been personally served on the person so refusing, such officer must proceed to inquire into the circumstances. If the person charged with withholding such books, papers, or property makes affidavit before such officer that he has delivered over to his successor all such books, papers, and property in his custody, or appertaining to such office, all further proceedings against him must cease.

1552. (3136) (304) (209) (196) (157) On refusal, imprisoned. If the person complained against does not make such affidavit, and it appears that any such books, papers, or property are withheld, the officer before whom the proceedings are had must, by warrant, commit the person so withholding to the jail of the county, there to remain until he

Vacating Office; Death, Resignation, Insanity, Removal.

delivers such books, papers, or property, or is otherwise discharged by law.

1553. (3137) (305) (210) (197) (158) Search warrant.—In the case stated in the preceding section, if required by the complainant, such officer must also issue his warrant, directed to any lawful officer, commanding him in the daytime to search such places as may be designated in such warrant, for such books, papers, and property as belonged and appertained to the office vacated, and to seize and bring them before the officer issuing such warrant.

1554. (3138) (306) (211) (198) (159) Delivered to incumbent if obtained.-Upon books, papers, or property being brought before such officer by virtue of such warrant, he must inquire and examine whether the same appertained to the office vacated, in which case he must cause such books, papers, and property to be delivered to the complainant.

1555. (3139) (307) (212) (199) (160) If in possession of any other person, proceedings to recover.—If any person holding any office in this state dies, or his office in any way becomes vacant, and any books, papers, or property belonging or appertaining to such office come into the possession of any person, the qualified successor to such office may, in the manner before prescribed in this article, demand such books, papers, or property from the person having the same in his possession, and on the same being withheld, an order may be obtained; and the person charged may, in like manner, make oath of the delivery of all such books, papers, and property that ever came into his possession; and in case of his failure to make such oath and to deliver up the books, papers, or property so demanded, such person must be committed to jail, and a search warrant may be issued, and the books, papers, or property seized by virtue thereof and delivered to the complainant, as herein before prescribed.

Vacating Office; Death, Resignation, Insanity, Removal.

ARTICLE 9.

VACATING OFFICE; DEATH, RESIGNATION, INSANITY, REMOVAL. 1556-1568.

1556. (3140) (308) (213) (200) (161) How offices are vacated. Any office in this state is vacated

1. By the death of the incumbent.

2. By his resignation, except in such cases as are excepted by law.

3. By ceasing to be a resident of the state, or of the division, district, circuit, or county, for which he was elected or appointed.

4. By the decision of a competent tribunal declaring his election or appointment void, or his office vacant.

5. By the act of the legislature abridging his term of office, when the same is not fixed by the constitution.

6. In such other cases as are or may be declared by law.

Vacating office by conviction of felony; appointment of county solicitor. -Ex parte Diggs, 50 Ala. 78. Transmitting resignation makes it effectual without acceptance and cannot be recalled.-Williams v. Fitts, 49 Ala. 402. Vacancy in office of trustee of university; statutes authorizing governor to fill vacancy of trustees does not apply to vacancies caused by expiration of term.-Little v. Foster, 130 Ala. 154 (30 So. 477).

1557. (3141) (242) (150) Vacation of judicial office by acceptance of another office.-The judge of a court of record, or a chancellor, vacates his judicial office by the acceptance of another office, state, county, or municipal.

(Acts 1873, p. 58.)

1558. (3142) (243) (151) (146) (107) Sentence of officer to the penitentiary vacates office.-When any person, holding any office or place under the authority of this state, is sentenced by any court of the United States, of this state, or any state, to imprisonment in the penitentiary, or hard labor for the county, his office or place is vacated from the time of the

Vacating Office; Death, Resignation, Insanity, Removal.

sentence; and if the judgment is reversed, he must be restored; but if pardoned, he must not.

Vacating office by conviction of felony; appointment of county solicitor. -Ex parte Diggs, 50 Ala. 78.

1559. (3143) (309) (214) (201) Vacation of offices of clerk of the circuit court, etc.-The offices of clerk of the circuit court, tax collector, tax assessor, county treasurer, and justices of the peace, are respectively vacated from the expiration of the incumbent's term, when there is a failure to elect at any general election, where such officers are elected by the people. (Dec. 8, 1862, p. 53, § 1.)

1560. (3144) Insanity vacates office.-When the incumbent of any office is, upon a proceeding in lunacy, adjudged to be of unsound mind, such office is vacated, and the judge of probate must certify the vacancy to the appointing power; but if such proceeding is thereafter revoked or annulled, he must, upon his own request, be restored.

1561. (3145) (310) (215) (202) (162) Notice of death of member of congress, or of legislature, etc.; by and to whom given. On the death of any senator or representative from this state to the congress of the United States, or of any member of the legislature, the judge of probate of the county in which such officer, at the time of his death, resided, must give notice thereof to the governor; in case of the death of the governor, such judge of probate must give notice to the lieutenant-governor; and in case of the death of any other officer, to the officer who fills the vacancy.

1562. (3146) (311) (216) (203) (163) Notice of death of judge of probate given by circuit clerk.-On the death of any judge of probate, the clerk of the circuit court of the county for which he was elected must give notice thereof to the governor.

1563. (3147) (312) (217) (204) (164) The resignation of the governor.-The governor, if he resigns during the session of the legislature, must transmit his resignation to the lieutenant-governor; otherwise, to the secretary of state, who must notify the lieutenant-governor.

1564. (3148) (313) (218) (205) (165) Resignation of members of congress, etc.-The resignation of senators and representatives in congress, and members of the legislature, must be transmitted to the governor; and in all other cases, except justices and constables, to the officer or tribunal which fills the

vacancy.

1565. (3149) (314) (219) (206) Resignation of justices and constables. The resignation of justices and constables must