Armstrong v. O'Neal

58 So. 268 | Ala. | 1912

SAYRE, J.

Appellant, alleging that he, along with others constituting a majority of the qualified electors of Geneva county, had filed their petition in writing with Governor O’Neal, praying that an election be held in that county for the purpose of determining whether the county seat should be removed from the town of Geneva to the town of Hartford, and that the governor had denied the petition, went into the circuit court of Montgomery, asking that a writ of mandamus be awarded to compel the governor to order an election for the purpose indicated. The circuit court sustained a demurrer to the petition for mandamus, and the petition having been dismissed for want of amendment, this appeal was taken.

Other reasons might be assigned in justification of the court’s refusal to interfere, or attempt to interfere, with the governor’s action; but we will content ourselves with the statement of one which seems to us to he entirely sufficient. In determining whether an election shall be held for the removal of a county seat, the governor, provided he acts within the limits of his jurisdiction, that is, on a case properly presented to him under the statute, exercises a judgment and discretion which cannot he reviewed or controlled by the writ of mandamus. This is made clear by section 206 of the Code in these words: “The Governor shall not entertain any petition hereunder which he may have reason to believe is not made in' good faith by persons desiring a removal of the county seat. If two or more bona fide petitions with respect to the proposed removal of the county seat of a county to two or more different points in the county shall be pending before the Governor for the appointment of commissioners, the Governor shall favor the proceeding which, in his judgment, is best calculated to result in a permanent location of the county seat.” It is alleged in the petition for the writ that, on the submission to the Governor of the petition for an election, it was admitted that more than a majority of the qualified electors of the county had signed the same; that a new courthouse had been built in the town of Geneva in the year 1898; that said courthouse was burned on March 15, 1911; that there was at the time no courthouse in the county; and that “the only question submitted for the consideration and determination of the Governor was Avhether or not he had the authority, as a matter of law and as Governor, to' order the election as prayed for in said petition.” It will be observed that the foregoing statement of an agreement, which we may suppose was entered into by parties appearing before the Governor for and against the proposed election, does not commit the Governor. Nor could he be so committed. In determining whether an election should be ordered under the statute, the Governor exercises the power of his office in the decision of a question of public concern, not a controversy as to private right. Notwithstanding such agreement, it was the Governor’s duty to inquire, not only whether a majority of the qualified electors of the county had signed the petition for an election, but whether the petition was made-in good faith by persons desiring a removal of the county seat, and, if he had any reason to believe it was not so made, it was his duty not to entertain it. In other words, so many and divers considerations influence persons to sign petitions, and they are so often signed without consideration, that the Legislature has required the Governor to dismiss from consideration any petition as to the bona fides of which there may appear to him to exist grounds of suspicion, and this though the petition be incontestably signed by a majority of electors. The statute provides no method of review, but it is evident that the courts, in undertaking on general principles to revise the results of any such inquiry, would find it necessary to move over very uncertain ground. They would never he able to say with any sort of confidence that the Governor did not refuse to entertain a petition because he had reason to believe it was not made in good faith by persons desiring a removal of the county seat. In short, the ordering of an election is left to the discretion of the Governor (State ex rel. Brown v. Porter, 145 Ala. 541, 40 South. 144), and that discretion is of such nature as to exclude the notion of a review by the courts in any manner. Where the application is for mandamus, it is essential that the relator have a clear legal right to the thing demanded, and it must be the imperative duty of the respondent to perform the act required. — Minchener v. Carroll, 135 Ala. 409, 33 South. 168. And in any event, the Governor having exercised his judgment and discretion hv denying the petition, there is no office to he performed by the writ of mandamus. — Taylor v. Kolb, 100 Ala. 603, 13 South. 779; Ramagnano v. Crook, 85 Ala. 226, 3 South. 845; Dunbar v. Frazer, 78 Ala. 538. It cannot be doubted that the Legislature had these decisions in mind when passing the- statute, and intended to give to' the Governor’s action that conclusive character and effect which we have assigned to it. So, then, though it be conceded that appellant had a good case in every other ’ respect, a concession we are far from making, his application for the writ of mandamus was properly refusel on the ground indicated.

Affirmed. ,

Dowdell, C. J., and Simpson, Anderson, and Somerville, JJ., concur. McClellan and Mayfield, JJ., not sitting.