
    STATE of Alabama ex rel. Jimmy H. BAKER, et al. v. James H. EVANS.
    1941959.
    Supreme Court of Alabama.
    Nov. 8, 1996.
    
      William P. Gray, Jr., Legal Advisor to the Governor, and Bert S. Nettles and Mark D. Hess of London & Yancey, Birmingham, for appellants.
    Lanny S. Vines and Michael L. Allsup of Emond & Vines, Birmingham, for appellee.
   PER CURIAM.

Jimmy H. Baker, as acting finance director for the State of Alabama, and Robert Chil-dree, as comptroller for the State of Alabama (hereinafter referred to collectively as the “State”), petitioned for a writ of quo warran-to, seeking to have James H. (“Jimmy”) Evans excluded from appointment as a supernumerary district attorney for the Fifteenth Judicial Circuit. The State argued that, pursuant to Ala.Code 1975, § 12-17-213(b), a person is qualified to be appointed as a supernumerary district attorney only if he or she is a sitting district attorney of a judicial circuit at the time of the appointment and that Evans did not meet this requirement. Evans counter-petitioned for a writ of mandamus to compel the State to pay him past and future compensation as a supernumerary district attorney. The trial court denied the State’s petition and granted Evans’s petition. The State appeals.

Evans served 18 years as district attorney for the Fifteenth Judicial Circuit before being elected to a term as attorney general of Alabama; he received his commission as attorney general on January 14, 1991. Evans was serving as attorney general when he submitted his statutory declaration and documentary exhibits to Governor Jim Folsom, Jr., for appointment as a supernumerary district attorney, pursuant to § 12-17-213(b). Governor Folsom issued the appointment to Evans on January 16, 1995. Evans has not yet reached the age of 60 years.

The State argues that Evans is not qualified under § 12-17-213(b) for appointment to the office of supernumerary district attorney. That section reads in part:

“§ 12-17-213. Qualifications for supernumerary status — Sixty years of age and 18 years of service as district attorney, judge, county solicitor, etc., with minimum of 10 years as district attorney; 18 years of service as district attorney, judge, county solicitor, etc., with minimum of 15% years service as district attorney.
“(a)....
“(b) Any district attorney of a judicial circuit who has served 18 years as circuit district attorney may elect to become a supernumerary district attorney by filing a written declaration to that effect with the Governor, and only two and one-half years served as judge of a court of record, a county court, county solicitor, a full-time deputy or assistant district attorney or as a duly licensed attorney employed full-time by the State of Alabama, whether commissioned or appointed or as an elected constitutional officer or other state official, may be counted as time served toward accumulating the above required 18 years.”

(Emphasis added.)

The State emphasizes that § 12-17-213(b) requires that an applicant for a supernumerary office be a “district attorney of a judicial circuit,” and the State argues that this language means that the applicant must he an active district attorney at the time he or she seeks the appointment. The State concludes that, because Evans was a former district attorney of a judicial circuit when he sought the supernumerary appointment, he is not qualified for the appointment.

Section 12-17-213(b) is one of a series of statutes in Title 12, Chapter 17, Article 6, Division 2, concerning the qualifications an applicant for the office of supernumerary district attorney must meet. The statutes set out variations in the requirements, based on the applicant’s age, years of service, and circumstances. Most of the statutes specifically require that the applicant be an active district attorney when he or she applies for the supernumerary office. See § 12-17-210(a)(2), § 12-17-210(b), § 12-17-211; and § 12-17-212. In contrast, § 12-17-213(b) does not on its face require that the applicant be holding the office of district attorney when he or she applies for the supernumerary position.

Moreover, § 12-17-213(b) is the only statute in this division that allows an applicant to apply two and one-half years of service in other state offices, such as the office of attorney general, in tallying the 18 years of service necessary to qualify for the office of supernumerary district attorney. As is indicated in the statute’s descriptive heading, the qualifications for an appointment as a supernumerary district attorney under subsection (b) are “18 years of service as district attorney, judge, county solicitor, etc., with minimum of 15% years service as district attorney” (emphasis added). This indicates that a district attorney is qualified to apply for the supernumerary office at any point after accumulating a minimum of (1) 18 years of service as a district attorney, or (2) at least 15½ years of service as a district attorney and 2½ years of service in other state offices, as allowed by the statute, before the period of service ends. The statute therefore provides for the circumstance where a party is a former district attorney, serving in another state office as provided by the statute, at the time that he or she applies for the appointment to the office of supernumerary district attorney.

The record shows that § 12-17-213(b) has been applied in such a circumstance as Evans’s in the past. W.M. Moebes, formerly district attorney for the Eighth Judicial Circuit, applied for an appointment to the office of supernumerary district attorney in the late 1980’s. The State admits that when Moebes applied for the appointment pursuant to § 12-17-213(b), he was a former district attorney under the age of 60, working as an attorney for the Alabama Public Service Commission, “presumably as an assistant attorney general.” Although he was not an active district attorney when he applied, Moebes was duly appointed to the office of supernumerary district attorney in 1989, specifically pursuant to § 12-17-213(b) and without protest from the State.

Although Evans had already accumulated 18 years of service as a district attorney . before taking office as attorney general, § 12-7-213(b) would allow him to apply up to 2½ years of his service as attorney general as part of the 18 years of service that would qualify him for the supernumerary office under § 12-17-213(b). Therefore, Evans could include a portion of his service as attorney general as part of his 18-year minimum, and apply for the appointment while still in office as attorney general.

Based on the foregoing, we conclude that the trial court properly entered the summary judgment. That judgment is affirmed. Given that holding, the State’s argument concerning the trial court’s granting of Evans’s writ of mandamus ordering the State to pay Evans as a supernumerary district attorney is moot.

AFFIRMED.

MADDOX and BUTTS, JJ., concur specially.

ALMON, SHORES, HOUSTON, KENNEDY, and COOK, JJ., concur in the result.

HOOPER, C.J., dissents.

MADDOX, Justice

(concurring specially).

I concur with the per curiam opinion’s interpretation of the supernumerary statute, § 12-17-213(b), Ala.Code 1975. Based on my review of the statute, the ease law, and the appellants’ response to the questions propounded by this Court, I believe that this interpretation of the statute is the correct interpretation.

However, I write to point out that this supernumerary legislative scheme is extremely complex, made up of a patchwork of various statutes, seemingly without any organization or uniformity. Supernumerary status has for many years been a source of much legal debate and many legal challenges. This opinion and the recent opinion in Norris v. Humber, 674 So.2d 77 (Ala.1995), demonstrate that the courts will continue to be faced with problems interpreting these statutes.

BUTTS, Justice

(concurring specially).

I concur with- the per curiam opinion because I agree with its interpretation of the requirements an applicant under § 12-17-213(b) must fulfill to qualify for the valid office of supernumerary district attorney, that is, “a legitimate public office of public trust with duties and responsibilities concomitant with its purpose and design.” See James v. Thompson, 392 So.2d 1178 (Ala. 1981).

I write to distinguish my concurrence in this case from my dissent in Opinion of the Justices, 665 So.2d 1382 (Ala.1995). There, I stated that the legislature’s attempt to create the position of “Honorary Member of the House of Representatives, Honorary Senator, and Honorary Lieutenant Governor of the State of Alabama” violated Constitutional Amendment No. 513 (which amended § 98 of the Alabama Constitution of 1901).

Amendment No. 513 states that the legislature may not retire any officer on pay, part pay, or make any grant to such retiring officer. The “honorary” positions at issue in Opinion of the Justices were not offices of public trust with duties and responsibility concomitant with its purposes and design and, thus, are not the constitutional equal of valid supernumerary offices. The “honorary” positions were impermissible retirement positions, which can be legitimized only by a vote of the people in a referendum to pass a Constitutional amendment that expressly authorizes them.

HOOPER, Chief Justice

(dissenting).

Both parties before the Court — the State of Alabama and Mr. Evans — seem to argue that Ala.Code 1975, § 12-17-213(b), is to be looked at in isolation when judging whether Evans is qualified to be a supernumerary district attorney. However, the statute must be read in its entirety, not by portions. Both § 12-17-213(a) and (b) are taken from one sentence of a legislative act; they are derived from § 1 of Act No. 1182, Alabama Acts 1975. The original act contained a semicolon between what now appears as (a) and (b). The Code publisher divided the one sentence of the Act into subsections (a) and (b). The subsections must be read together.

Ala.Code 1975, § 12-17-213, reads:
“(a) Any person now serving or having formerly served as a district attorney of a judicial circuit of Alabama, who has served for not less than 18 years, when he has reached the age of 60 years, may elect to become a supernumerary district attorney by filing a written declaration to that effect with the Governor, and time served as judge of a court of record, a county court, county solicitor or any other county-wide elected official, a full-time deputy or assistant district attorney or as a duly licensed attorney employed full time by the State of Alabama, whether commissioned or appointed or as an elected constitutional officer or other state official, shall be counted as time served towards accumulating the above required 18 years; provided, that such district attorney shall have served not less than 10 years as district attorney of a judicial circuit.
“(b) Any district attorney of a judicial circuit who has served 18 years as circuit district attorney may elect to become a supernumerary district attorney by filing a written declaration to that effect with the Governor, and only two and one-half years served as judge of a court of record, a county court, county solicitor, a full-time deputy or assistant district attorney or as a duly licensed attorney employed full time by the State of Alabama, whether commissioned or appointed or as an elected constitutional officer or other state official, may be counted as time served towards accumulating the above required 18 years.”

Subsection (a) clearly requires that a person serve 18 years as a district attorney and be 60 years old to receive supernumerary status. It includes the following phrases: “any person,” “now serving or having formerly served as a district attorney,” “for not less than 18 years,” and “when he has reached the age of 60.” Evans meets the 18-year service qualification, but he does not meet the age qualification.

Subsection (b) applies only to currently serving district attorneys. But that status of being a serving district attorney is included in that portion of (a) that reads “now serving ... as district attorney.” The (a) portion clearly requires that a district attorney or former district attorney be 60 years of age or older to receive supernumerary status. This Court cannot construe the Act by excising subsection (a):

“The different parts of a statute reflect light upon each other, and statutory provisions are regarded as in pari materia where they are parts of the same act. Hence, a statute should be construed in its entirety, and as a whole. All parts of the act should be considered and construed together. It is not permissible to rest a construction upon any one part alone, or upon isolated words, phrases, clauses, or sentences, or to give undue effect thereto. The legislative intention, as collected from an examination of the whole as well as the separate parts of a statute, is not to be defeated by the use of particular terms.”

73 Am.Jur.2d Statutes § 191 (1974). Evans will be eligible for supernumerary status once he reaches age 60, but not before then. The trial court’s judgment should be reversed.

The most sensible interpretation of subsection (b) is as a grandfather clause. That portion of the Act ensured that district attorneys who were serving at the time this legislation was passed did not lose service time in another office prior to the Act’s passage. They could include 2.5 years of service in another public office even if that time had been served before the Act’s passage.

Evans’s brief gives no explanation for ignoring the (a) portion of the Act. He simply states that he wants to use only the (b) portion, although that subsection does not apply to him. Every district attorney who comes within (b) also comes within (a).

The State has informed this Court that since § 12-17-213 went into effect, a total of 7 persons under the age of 60 have been appointed to the office of supernumerary district attorney. However, the fact that the State of Alabama has in the past violated this statute does not make it legal for the State to continue to violate the law. The statute is not ambiguous.

If Evans’s interpretation of the statute is followed, then the age 60 requirement is rendered meaningless. Why did the legislature include that requirement in subsection (a)? This Court cannot consider language used by the legislature in a statute to be without meaning or effect. Under the majority’s interpretation, no district attorney or former district attorney would need to meet the age 60 requirement.. Or just as nonsensical, a former district attorney under the age of 60 who serves in a state office when applying for supernumerary status qualifies, while a former district attorney under the age of 60 who does not serve in a state office does not.

There is another more fundamental reason that Evans should not receive supernumerary status under § 12-17-213. The practical effect of that statute was to provide pensions to former district attorneys. However, in Zeigler v. Baker, 344 So.2d 761 (Ala.1977), this Court held that the payment of pensions to former state officials would violate § 98 of the Alabama Constitution, which reads: “The Legislature shall not retire any officer on pay, or part pay, or make any grant to such retiring officer.” This Court considered the original intent of the framers of the Alabama Constitution of 1901 in interpreting § 98.

“After considering the meaning of the phrase, ‘civil pension list,’ as it was used by Governor Oats during the Official Proceedings of the Constitutional Convention of 1901, which adopted Section 98, it is our opinion that the language of that section proscribing any power in the legislature to make any grant to any retiring officer, was meant to prohibit that body from granting a public officer, including, of course, a governor, retirement funds upon his becoming eligible after leaving office.”

344 So.2d at 766-67. If that section applies to governors, it applies to district attorneys.

Therefore, this Court should hold that the prohibition found in § 98 that prevented the legislature from making a grant to any retiring officer also forbids the legislature from granting a de facto pension to a district attorney. It does not matter that it was called by another name, e.g., “supernumerary status.” Ala.Code 1975, § 12-17-213, was unconstitutional when it was enacted, and this Court should so hold. For that reason also, Evans is not entitled to “supernumerary status.”

Even if this Court does not address the issue of the constitutionality of supernumerary pensions,, it is clear that § 12-17-213 does not entitle Evans to supernumerary status until he reaches age 60. Therefore, I dissent. 
      
      . See Norris v. Humber, 674 So.2d 77, 79 (Ala. 1995), in which we stated:
      "|T|his Court in James v. Thompson, 392 So.2d 1178 (Ala. 1981), addressed the character of the office of supernumerary sheriff:
      " ‘[0]ur disposition of the instant appeal is aided by the literal meaning of the word "supernumerary." The word is derived from two Latin words — super, above or beyond; and numerus, a number. Thus, these two words, when used in combination and translated, mean exceeding a prescribed number.' ”
     