188 So. 891 | Ala. | 1939
The facts in the case are simple. The petitioner, as an elector of the County of Mobile and a resident of the City of Mobile, filed a contest of the election of the respondent Taylor to the office of City Commissioner of the City of Mobile, under the statutes governing election contests — section 545 et seq., Code 1923.
After the trial had proceeded for months and the parties had closed their evidence in chief, the contestant moved the trial court for a dismissal of his contest without a ruling on the merits. This motion the court refused, upon objection by the contestee. Upon the petition for mandamus filed herein, this Court issued its rule nisi to the respondent, as the judge sitting in said cause, to show cause why the writ of mandamus *64 should not issue, as prayed for in the petition; said Taylor, the contestee in the case below, being made a party to the petition. Each of the respondents has filed separate demurrer to the petition for mandamus.
The presiding judge and his counsel insist that the petition for writ of mandamus should be refused, because petitioner has an adequate remedy by appeal from the final judgment of the case, when rendered. Many cases from this and other jurisdictions are cited. Ex parte Rowland,
It is further insisted that the instant petition shows that petitioner has not been injured by the action of the trial court in declining to grant the motion to dismiss the contest without a ruling on the merits, when all the evidence on direct and cross examination was before the court. Pearson v. Alverson,
The demurrer filed by each of the respondents raises the point that the action of the trial court in refusing to grant the motion to dismiss may be reviewed on appeal from the final judgment entered in the case. That is, the petitioner had an adequate remedy by appeal when the case was finally decided on the merits.
In White v. Nance,
In the case of Ex parte Johnson,
The Court said: "But it is asserted, by petitioner's counsel, that the defendants' answer was in no sense a cross-bill and that it called for no relief or answer; and that, therefore, the complainant had control over his own pleadings, and had a right to be dismissed. This may be true, but it is not the province of this court, upon this application, to go back of the judgment of the court below, upon the motion, to ascertain whether there was an error or not in its determination of the motion. If it acted erroneously, the complainant had anotherremedy clearly pointed out by the law." [Italics supplied.]
In Ex parte Rowland,
The case of Ex parte City Council of Montgomery,
These cases, from which we have quoted above, have not been departed from. In Ex parte Jackson,
In 4 A.L.R. 632, under the annotation "Inadequacy of remedy by appeal or writ of error as affecting right to mandamus to inferior court," the cases from this and other jurisdictions are collected. It is there said:
"In Ingram v. Alabama Power Co., 1917,
"So, in First Nat. Bank v. Cheney, 1898,
As conclusive of the proposition that the petitioner has an adequate remedy by appeal, we refer to the cases cited below. In each of these cases the plaintiff moved for a nonsuit or a dismissal of his action, the same was denied by the trial court, and the cause proceeded to final judgment on the merits. The appellate court on each appeal from such final judgment reviewed the action of the trial court, in some instances affirming the court, and in other instances, reversing it. The cases in this and other jurisdictions are: Chicago A. R. Co. v. Union Rolling Mill Co.,
What then is the effect on the petitioner of the action of the trial court in declining to grant petitioner's motion to dismiss his contest?
The statute prescribes that the contest must be commenced within twenty days after the result of that election has been declared. Code 1923, §§ 545, 552. This provision has been held to be jurisdictional. Pearson v. Alverson,
Had the court below granted petitioner's motion to dismiss, said judgment would have been beyond the time for a contest of that election, and petitioner could not have instituted another contest. Code 1923, § 545. It results that petitioner was without injury whether or not the judgment was one of dismissal without decision on the merits. Hence the mandamus, if granted, would not benefit petitioner. White v. Nance,
We may further observe that there was no arbitrary action on the part of the trial judge, under the facts disclosed, in that the people of Mobile were third parties at interest in the contest of said election to determine who was to serve as a city commissioner.
From McCrary on Elections (4th Ed.), § 454, p. 333, we quote the following: "A contested election case, whatever the form ofthe proceeding may be, is in its essence a proceeding in whichthe people — the constituency — are primarily and principallyinterested. It is not a suit for the adjudication andsettlement of private rights simply. It follows that the parties to the record can not, by stipulation or otherwise, discontinue or compromise a case of this character without the consent and approval of the court or tribunal trying it. Nor should such consent ever be given, unless the Court giving it is sufficiently advised to be able to say that it is for the interest of the public to do so." Mann v. Cassidy, 1 Brewst, Pa., 11, 43; People v. Holden,
Since the contest may be instituted only by a qualified elector, and the relief is in favor only of the candidate receiving the highest number of legal votes, the proceeding in its highest sense is one in which the public is interested, as it is for the public good. Black v. Pate, supra; Pearson v. Alverson, supra; 20 Corpus Juris, 258.
Analogy is to be found in the wise observations contained in the decision in Tuscaloosa Scientific and Art Association v. State ex rel. A. O. Murphy,
The above observation has application to the contest of elections to public office, such offices being designed to serve the people justly, and by agents of their selection as prescribed in the Constitution and statutes, in the due exercise of a public privilege which the legislature has regulated in respects not prohibited by the organic law. Garrett v. Cuninghame,
It results from the foregoing that mandamus in this case is denied.
Writ denied.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.