64 So. 313 | Ala. | 1913
The contest is filed under section 5887 of the Code of 1907, which is as follows: “Such election may be. contested on the same grounds and in the same manner before the probate judge as c.ontests of election of constable, and had before such probate judge, in the following manner: Any qualified elector of the precinct, or precincts, for which such election shall be held, may contest.the election by executing a bond with two sufficient sureties, to be approved by the judge of probate of the county for the payment of the costs of the contest. Notice of the contest shall be served on the circuit solicitor of the county, or county solicitor, if there is one, and upon the execution of a bond for costs signed by three or more qual
As originally enacted (Sess. Acts 1903, p. 434, § 7), the provision was merely that “such election may be contested on the same ground and in the same manner before the probate judge as contests of election of constable are had before said probate judge.”
In Beason v. Shaw, 148 Ala. 544, 42 South. 611, 18 L. R. A. (N. S.) 566, it was held that a stock law contest could not be maintained under the original act, because the statutes relating to the contest of a constable’s election (now sections 471-477 of the Code of 1907) are inadequate and inappropriate; and it was there said, per Denson, J.: “The law with respect to contest of a constable’s election is confined by its very terms to the election of persons to office, as may be seen by reference to section 1697 of the Code of 1896 [section 471, Code 1907], which, among'other things, provides that the judge of probate must order a summons to issue to the party whose election is contested, accompanied with the copy of the statement, requiring such party to appear, etc. Further, the party whose election is contested must have 10 days’ notice in writing of the day appointed for the trial.”
The present statute was evidently framed with a view to obviating the difficulties pointed out in the opinion above quoted from, and the question now presented is whether the Code amendment of the original act accomplishes that purpose. It is certain that the statute
Where a new statute specifies the procedure to be followed, but is not complete in itself, it may with perfect propriety refer to, and by reference adopt, the provisions of an existing system for the regulation of the new proceeding. And this does not require the specific adoption of the existing statutes suis nominibus.
It is true that section 5887 declares that “All provisions of the election law pertaining to the contest of an election for constable shall be observed as to the contest hereunder”; and, literally construed, this would require the observance of some provisions not at all adaptable to this contest. But such a literal construction would be opposed to common sense, and would indeed convert a clear legislative purpose into simple foolishness. The intent of the statute is to look to the constabular system, already provided, for all of those details of procedure necessary or appropriate to an orderly contest, which are not set forth within itself. And we think that all of these necessary provisions, which are not assimilable from the older system, are in fact supplied by the statute in question. The consensus of judicial opinion on this subject is correctly stated as follows: “A statute may adopt a part or all of another statute by a specific and descriptive reference thereto, and the effect is the same as if the statute or a part thereof adopted had been written into the adopting statute. Where, however, the adopted statute is referred to merely by words describing its general character,
The statute makes the county the contestee in the proceeding, service upon it to be had by notice to .the circuit or county solicitor, who must answer the petition in the name of the county.
The filing by the contestant of a bond for the payment of the costs of the contest, if unsuccessful, is of course jurisdictional, and without it the court cannot proceed with the case a single step. — Wilson v. Duncan, 114 Ala. 659, 669, 21 South. 1017.
The statute does not prescribe the form of the bond, and more properly it should be payable to the contestee. We think, however, that the bond here shown, payable “to the state of Alabama for the use of Walker county,” is sufficient for the purpose intended. If no sufficient bond is filed within the period allowed for instituting the contest, there is in fact no contest, and the petition falls as a matter of course.
Answering one of the queries of counsel for appellee, we may here suggest that the solicitor is under no duty to do anything except to make answer for the county after the contest is properly begun, and to conduct the defense.
It is urged for appellee that, even if section 5887 provides a procedure otherwise sufficient, it has nevertheless been repealed, or rendered inappropriate, by the act approved April 5, 1911 (Sess. Acts 1911, p. 195), which amends section 470, and by necessary implication section 471, of the Code by changing the forum of contests from the probate to the circuit court, or court of like jurisdiction. Conceding the scope of the amend
Tbe eighth ground of tbe motion to dismiss is that “notice of said contest bas not been served upon tbe circuit solicitor, and there is no county solicitor for Walker county.” This objection, which is purely technical, is without merit. The designation of “county solicitor” is satisfied in tbe person of tbe solicitor of the law and equity court of tbe county, and tbe service on him was proper and efficacious. Moreover, if it were conceded to be otherwise, tbe objection would go only to tbe service, and would be no ground for dismissing tbe proceeding.
Tbe record shows that tbe incumbent probate judge, who approved tbe contest bond and issued tbe notice of contest to tbe solicitor and set a day for tbe bearing, subsequently certified to tbe circuit judge that be was “incompetent to try and bear said contest.” One of tbe grounds assigned for dismissal is that “tbe bond was approved by J. W. Shepherd, who was incompetent to try tbe case, and bas certified bis incompetency.” It may be conceded that the approval of tbe bond was a judicial act. — Ex parte Thompson, 52 Ala. 98; McDuffie v. Cook, 65 Ala. 430. And further that tbe probate judge was not competent to do any judicial act in tbe premises.
But it does not result from these concessions that tbe approval of tbe bond was a void act, for it is well settled by our decisions, at least so far as disqualification by reason of interest or relationship is concerned, that tbe act of tbe disqualified judge is voidable only, and
We think the contest was improperly dismissed, and the judment of the probate court will be reversed, and .a judgment here rendered overruling the motion, and remanding the cause for further proceedings.
Reversed, rendered and remanded.
