Ham v. State ex rel. Buck

47 So. 126 | Ala. | 1908

DENSON, J.

This action is brought in the name of the state, on the information of A. V. Buck, against J. N. Ham, to try the title of the respondent to the office of mayor of Elba, to oust him from the office, and to declare the relator entitled to the same. Section 3420, Civ. Code 1896, provides that such action may be brought “when any person usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any office in a corporation created by authority of this state.” Section 3 of the information, or complaint alleges that the respondent. usurps, unlaw7fully holds, and exercises the office of mayor of the town of Elba, which is a public and civil office within the state. In the cases of usurpation and ouster it has been expressly decided that these averments are sufficient against demurrer. — Jackson v. State, etc., 148 Ala. 145, 42 South. 61; Frost v. State, etc., 153 Ala. 654, 45 South. 203. But when there is sought by this proceeding “not only the exclusion of the defendant from the office in controversy, but the installation of the relator, the proceeding is essentially and practically a civil suit, wherein the complaint should Set out the facts upon which the relator relies to sustain his title to the office, and, so far as practicable, specify the objections intended to be made to the title of the respondent.” — State v. Price, 50 Ala. 568; State v. Goodgame, 153 Ala. 646, 45 South. 307. And the statute (Civ. Code 1896, § 3428) requires that “the complaint in such action must concisely and clearly set forth the act of omission complained of.”— State ex rel. Johnson v. Sou. B. & L. Ass’n., 132 Ala. 50, 31 South. 375; L. & N. R. R. Co. v. State ex rel. Gray, 154 Ala. 156, 45 South. 296.

In the sixth paragraph of the' information it is averred that certain named persons voted in the election held for mayor for the respondent, and that said persons were not at the time they voted qualified and legal voters of said town under the law. The demurrer to the information raises the point that it should allege wherein said persons were disqualified, and not legal voters — what constituted their disqualification. It cannot be denied that the averment is a legal conclusion (12 Am. & Eng. Ency. PL & Pr. 1030), nor that it is not an averment in respect to a matter which may be said to be peculiarly within the knowledge of the respondent (as in negligence cases). It may well be that the pleader entertains the opinion that the persons named are, as a matter of law, disqualified, and not legal voters; whereas, if the facts upon which he bases the opinion are alleged, the court might reach a different conclusion. The disqualification vel non of the persons named is a vital question in the case. The rightfulness, or not, of respondent’s claim to the office, as well as that of the relator’s, depends upon it; and we.hold that the facts upon which the averment that the parties named are disqualified and illegal voters is based should he alleged in the complaint, and, of consequence, that the court erred in overruling the grounds of the demurrer which present the point. In all other respects the demurrer to the information is without merit.

Section 3 of the charter of said town (Acts 3.898-99, p. 1194) provides, among other things, that “the mayor and councilmen shall determine the legality of elections and declare who are the legally elected officers, and in case of a tie shall determine who are mayor and aider-men.” The effect of this is to create the mayor and councilmen a board of supervisors, to determine the result of the election, and to declare who are elected to the several offices. “But the declaration of this board does not necessarily determine the fact permanently, or beyond revision, but for the time being to confer on those who are declared, elected a prima facie right to hold the office until a different result may be reached in a proper proceeding to contest the title to the office of the person declared by the board entitled to it. As against any intruder in the office, and in fact as against all the world except a de facto officer in possession of the office under color of authority, the fact is settled by the determination of the board until in a proper proceeding that determination is reversed.” — McCrary on Elections, §§ 204-221; Merrill on Mandamus, § 142; 2 Dillon on Munic. Corp. (2d Ed.) § 716; State v. Oaees, 86 Wis. 634, 57 N. W. 296, 39 Am. St. Rep. 912; Echols v. State ex rel Dunbar, 56 Ala. 132. This being so, the declaration of the result of the election by the board cannot be res adjudicata in respect to the right of a party to contest the title of one declared elected to an office. We think it was not intended by the Legislature to confer on the mayor and councilmen jurisdiction to hear and determine cases of contested elections. Therefore it must follow that the demurrer to pleas A aud B, which attempt to set up the doctrine of res adjudicata, was properly sustained. — Echols v. State ex rel. Dunbar, supra.

There is no provision by statute for contesting the election of mayor of the town of Elba. Consequently such election may be contested by a proceeding in the nature of quo warranto.- — Echols v. State ex rel. Dunbar, supra; Parks v. State, 100 Ala. 634, 13 South. 756.

The court properly granted relator’s motion to strike the portion of paragraph 4 of the answer of respondent which is set out in the motion. The matter presented was frivolous, and was also irrelevant to any issue involved’in the cause.

Pleas C, 1, 2, 3, and 4, raise the question of the constitutionality of a local act of the Legislature extending the territorial boundaries of the town of Elba. — Loc. Acts 1903, p. 160. The title of this act is “An act to extend the corporate limits of the town of Elba.” Section 1 of the act provides for an extension of the territory of the town, and defines the boundaries of the territory ' taken in by the extension. Section 2 is in this language: “Provided, that this act shall not require the municipal corporation of the town of Elba to-keep in repair such county bridges as are now located within the territory above described, or which may hereafter be erected by the county of Coffee, or provide bridges across the streams in said territory.” There are two points in the attack made on the act: First, that notice containing the substance of the law was not published, as required by section 106 of the Constitution- of 1901, prior to the introduction of the bill; second, that the law contains two subjects, one of which is not expressed in the title, in violation of section 45 of the Constitution of 1901.

In respect to the latter objection, the rule, as stated by this court, is that “the title of a bill may be very general, and need not specify every clause of the statute, it being sufficient if they are all referable and cognate to the subject expressed; but, if clauses are contained in the act wThich are not so correlated to the subject expressed in the title as to appear to follow as a natural and legitimate complement, they cannot stand.” — Ballentyne v. Wickersham, 75 Ala. 533; Bradley’s Case, 99 Ala. 177, 13 South. 415; Bell’s Case, 115 Ala. 87, 22 South. 453. Again it is said the test is: Is there anything in the bill which cannot by fair construction be referred to the title? Or (as stated in another form by this court) : “The question must be whether, taking from the title the subject, we can find anything in the bill which cannot be referred to that subject. If we do, the law embraces a subject not described in the title.” —Ex parte Pollard, 40 Ala. 77; State v. Sayre, 118 Ala. 1, 24 South. 89; Alabama, etc., R. R. Co. v. Reed, 124 Ala. 253, 27 South. 19, 82 Am. St. Rep. 166. Applying these principles to the act in judgment we are clear in our conclusion that the subject-matter of section 2 is not expressed in or implied by the title. — that it is not so correlated to the subject expressed in the title as to appear to follow as a natural and legitimate complement thereto. Therefore the act, so far as section 2 is concerned., is void. — Authorities supra; Thompson v. Town of Luverne, 125 Ala. 366, 29 South. 326; Randolph v. Painters Co., 108 Ala. 501, 17 South. 721; Ex parte Gayles, 108 Ala. 514, 19 South. 12.

But it is insisted by the relator that, if section 2 is inoperative, it may be expunged and leave a perfect enactment. When .two subjects are expressed in the title of a bill, and the body embraces both, the whole act will be treated as void. — Builders’ Co. v. Lucas & Co., 119 Ala. 202, 24 South. 416; Ballentyne v. Wickersham, 75 Ala. 533. But when only one subject is expressed in the title, and the body of the act contains matter not within the purview of the title, if such matter is distinct and separable from that expressed in the title, and the two are not dependent the one on the other, the courts will permit the one part to stand, though the other may be expunged as unconstitutional, provided effect can be given to the legislative intent. — Cooley’s Const. Lim. pp. 176, 181; Bradley’s Case, 99 Ala. 177, 13 South. 415; Lowndes County v. Hunter, 49 Ala. 507; Powell's Case, 69 Ala. 10.

Having determined that section 2 of the act is not within the purview of the title, we entertain no doubt that it is separable from the subject expressed in the title. That the title and section 1 of the act constitute a complete and perfect enactment cannot be a subject of doubt; and we cannot say that the Legislature, without section 2, would not have passed the act. The primary, controlling purpose of the Legislature in the enactment of the law, it seems to us, was that expressed in the title — the extension of the territorial limits of the town. We are not impressed with the argument that section 2 of the act was intended as a compensation for the bringing in of the new territory. It seems to us to be without application here. On the considerations adverted to, we hold that, exclusive of section 2, the stat* ute may stand as a valid enactment. This conclusion disposes of the first point of attack made on the law.

It being conceded that the substance of the act, exclusive of section 2, was published before the introduction of the bill, as required by section 106 of the Constitution of 1901, and section 2 being now here expunged, it follows that the failure to include the substance of section 2, which was added to the bill after its introduction,, does not affect the validity of the law.

The objection to the question propounded to witness Warren by the respondent was properly sustained. The testimony called for was patently illegal and incompetent. — Sections 186, 187, Const.; sections 15, 16, Election Law (Gen. Acts 1903, pp. 446, 447) 10 Am. & Eng. Ency. Law, 840.

The ballots and poll lists were in evidence, and showed that W. C. Wood voted for the relator; so that, even if it should be. conceded that the question propounded to witness Will Bryant by respondent was a proper one, it affirmatively appears that no injury resulted to him by the court’s sustaining the objection to the question. The same observations apply in respect to the ruling of the court on the questions propounded to another witness, calling for evidence as to whom Hutchinson, Deal, Flowers, and Boutwell, voted for.

The evidence tended to shoAV that witness Will Bryant voted illegally; but he did not claim the personal privilege of refusing to anSAver the question propounded to him by the relator, and on the authority of Black v. Pate, 130 Ala. 514, 528, 30 South. 434, we hold that the court committed no error in overruling the objection to the question.

Will Bryant had testified as a witness before the jury. They saw him, and were as capable of draAving inferences as to his age (based on his appearance) as was the witness Page. The court erred in allowing the Avitness to testify that Bryant “looked to be 40 or 45 years old.” —-Martin’s Case, 90 Ala. 602, 610, 8 South. 858, 24 Am. St. Rep. 844.

The mere fact that Avitness Page voted against the respondent in the election for mayor would not shOAV that he was interested in this proceeding; and the court properly sustained the objection of the relator to the question calling for such evidence. — Carpenter’s Case, 98 Ala. 31, 13 South. 534.

Unsuccessful efforts made by persons desiring to be registered to have the registrars meet on Friday and Saturday before the Monday on which the election was to be held were immaterial to the issues in the cause, and the court committed no error in disalloAving proof of the same.

Assuming that the declarations of Ab Lee as to his residence, made to witness Garrett, would be competent testimony, yet, in the absence of proof that his father did not reside in the town of Elba, his declaration tha c he could not get his breakfast at his father’s earlier did not tend to prove him a nonresident of the town, and the court, committed reversible error in refusing respondent’s motion to exclude such declaration.

The fact that a bad state of feeling may have existed between Avitness Lightner and Ab Lee, who was neither a party to nor a Avitness in the proceeding, was not competent. testimony, and the court committed no error in not allowing proof of such feeling.

The declarations of witnesses Wise, Spurlin, Blocker, Brooks, and Claud Lee as to Elba being their home were not proper evidence to prove their residence; and the court properly sustained relator’s objection to such evidence. — Bradford v. Haggerthy, 11 Ala. 698; Griffin v. Wall, 32 Ala. 149.

The isolated fact that Claud Lee had relatives in Elba, and the further fact that his father and mother resided near Elba, were not competent to show that he resided in that town; and there was no error in the ruling of the court disallowing proof of these facts.

The court takes judicial knowledge of historical facts (16 Cyc. 864, 865), and therefore of the fact that the battle of Atlanta, fought in the war between the states, occurred on the 20th of July, 1864; and even if it was error to allow the date of the occurrence of that battle to be proved by a witness who as a soldier, was engaged in the battle, his testimony corresponding with the true date, no injury could possibly have resulted from the court’s allowing such evidence to be given. — 17 Am. & Eng. Ency. Law, 902 (2), and authorities cited in notes 8 and 4 to the text; Cook’s Case, 110 Ala. 40, 47, 20 South. 360.

Section 2 of the act incorporating the town of Elba (Loc. Acts 1898-99, p. 1194), provides that the mayor and councilmen shall be elected by the qualified voters of the town. Section 21 of the same act provides “that; no elector shall be permitted to vote at any election in said town until he shall have been a resident citizen of the state of Alabama for 12 months and of said town for 3 months.” These are the only provisions in the charter that refer to voters or electors. Sections 106 of the election law of the state, approved October 9, 1903 (Gen. Acts, p. 479), is in this language: “All the provisions of this act shall apply to all primary elections by counties or municipalities held in this state, except in cases where the provisions hereof are inconsistent or in conflict with the provisions of a law governing especially primary, county or municipal elections.”

It will be observed that the charter of the town of Elba does not purport to fix the qualifications of an elector, except in respect to the time of residence in the state and town. Therefore the provisions of the general law requiring the payment of poll tax and registration are applicable in determining who are qualified electors of the tOAvn of Elba. — Const. § 184; 1 Dillon on Munic. Corp. (2cl Erl.) § 54. That provision, in section 6 of the general election law, Avliich requires the registrars to meet on Friday and Saturday next preceding the day of each general or municipal election, applies only to municipal elections held under the “general municipal laAArs of the state.” The election in this case having been held under the power given in the charter, there was no authority to the registrars to open the books for registration of voters; and, of consequence, those persons aaIio were registered on those days, and on Monday, the day of the election, Avere not legally registered. It folIoavs that the first part of the oral charge of the court excepted to is free from error. — Const. 1901, § 184.

If there is any infirmity in that part of the oral charge Avhich relates to E. D. Tucker’s qualifications, it is found in the fact that the court left a question of Iuav to the jury in respect to the liability for poll taxes. The court should have stated Avhat the laAV requires in respect to such liability, and then should have left.it to the jury to determine the facts in connection Avith such statement of the law.

The court, having determined that the act extending the territorial limits of the town AAras constitutional, there no longer remained any controversy in the case as to the relator’s qualifications or eligibility for the office of mayor. Therefore the court properly assumed the fact of eligibility. — Miller’s Case, 107 Ala. 40, 19 South. 37. This assumption of the relator’s eligibility seems to be the main point in the criticism of the last part of the charge of the court. We see no reversible error in the mode suggested by the court to the jury to he adopted in arriving at the verdict.

For the errors pointed out, the judgment must be reversed, and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Haralson and Simpson, JJ., concur.