71 So. 108 | Ala. | 1916
This cause originated in the contest of a stock law election for precinct No. 3, St. Clair county. From an adverse ruling, the contestant prosecutes this appeal.
The argument of counsel is directed to the validity vel non of the order for the election, and of the proceedings in the commissioners court'. We entertain the opinion that this is matter not properly presented in a contest of the election. See sections 5882 and 455, Code 1907. As said by this court in Commissioners’ Court v. Johnson, 145 Ala. 553, 39 South. 910, if the “election was void, there was nothing to contest.” The remedy for review of such questions is by certiorari to quash the proceedings. However, as we deem the matter of such character as should be determined without further litigation, we will discuss the question argued by counsel.
The case of Stephens v. Commissioners’ Court, supra, is very much in point in the instant case.
The record before us shows that the orders entered upon the minutes of the court of county commissioners in respect to. the stock law election contained all necessary and jurisdictional averments, and the regularity of the orders of said court is not here attacked. The order calling for the election recites, among other things, that the petition was filed on November 4, 1913. In Stephens v. Commissioners’ Court, supra, it was held that although the petition did not conform to the requirements of law, yet, as the order of the commissioners’ court affirmatively adjudged that every jurisdictional requirement of the law was met, the proceeding should not be quashed upon the petition for certiorari. Speaking of the effect of the change of the provision of the Code as now found in section 3312, the opinion says: “The effect of the amendment was to convert the commissioners’ courts, and courts of like jurisdiction, * * * unless ‘otherwise provided by Jaw’ — a condition not present in this instance.”
By what is here said we do not mean to indicate that it would be held, even in the absence of the change wrought by section 3312, that a failure to have the petition marked “filed,” or to have any order indorsed on the petition itself, would affect the proceeding; the records of the court showing that the petition was, in fact, before the commissioners’ court and acted upon. Indeed, we are inclined to the contrary view. However this may be, we think it quite clear that under the statute as it now exists, and under the decisions of this court, the point is not well taken.
We have given consideration to the only question presented in brief of counsel for appellant.
The judgment is affirmed.
Affirmed.