Martin v. Crook

46 So. 482 | Ala. | 1908

DOWDELL, J.

This is a proceeding by common-law certiorari to review the proceedings had before the probate judge of Calhoun county in the matter of a petition for holding a stock-law election under the local law enacted for said county February 13, 1897. — Acts 1896-97, p. 887. The petition for certiorari was addressed to Hon. John Pelham, judge of the Seventh judicial circuit. A hearing was had upon a return made to the writ, and on this hearing the court denied the petition and dismissed the.-same, and from this juclgmept the, present appeq.1 -is prosecuted. ■

Tlie first insistence in argument by counsel for appellant is that tbe probate judge never acquired jurisdiction, and therefore all orders made by him and proceedings had thereon in the holding of the election for the stock law were null and void. This is predicated upon the theory that the petition filed with the probate judge for holding an election is insufficient in its averments. The petition substantially embraces all that is required to be stated in section 1 of the act in question, and under which it is filed, necessary to confer jurisdiction on the probate judge. It may be that it is not as definite in its statements as good pleading in actions at law would require, and for that reason might be’ subject to demurrer; but we think in proceedings of this nature the want of such accuracy should not affect the question of jurisdiction, when the petition substantially contains the essential jurisdictional facts. The case is different from that of Tally v. Grider, 66 Ala. 119. In that case the petition wholly omitted the averment of facts which the law specifically required to be stated in the petition.

It is next insisted that the probate judge had no authority to appoint the managers of the election, and for that reason all of the proceedings before him and the holding of the election should be adjudged void and of no effect. Section 2 of the act in question provides: “That said election shall be held on the day specified in the order and notice provided for in the preceding section; that managers for said election shall be appointed as in'general elections for county officers, and said election shall be held in the same manner and under the same regulations as general elections,” etc. The act is silent as to' who shall appoint the managers, but merely says: “Managers shall be appointed as in general elec-’ tions for county offices.” At the date of the passage of this act the'general' election laAV (section 352'of the Code of 1886, brought forward into the Code of 1896 as section 1588) provided for the appointment of three inspectors by the probate judge, sheriff, and clerk of the circuit court, or any two of them, for holding an election. We do not decide whether it was the purpose of the act in question that the managers should be appointed by the three officers designated in the general election law, since it is not necessary to a' conclusion in this case; but, if the act be construed to intend as much, it does not follow that the appointment of the managers by the probate judge alone rendered the election void. It is not pretended that there was any fraud or unfairness, or that the populuar will was not fairly and freely expressed in said election. The managers so appointed were at least de facto officers of election, acting under color of authority. In 15 Cyc. p. 311, it is said: “There is nothing better settled than that the acts of election officers de facto, who are in under color of election or appointment, are as valid as to third parties and the public as those officers de jure.” It is not the policy of the law to defeat popular election upon what might be considered an irregularity. This policy is manifested in our statute (section 355, Code of 1886, brought forward into the Code of 1896 as section 1591), which provides that upon the failure of those who are appointed to hold the election to attend and act any three qualified electors may hold the election.

It is next insisted that the proceedings and the election held thereunder should be declared void, because it is not shown that the election was held in that part of the precinct for which the election was ordered. It is not shown on the face of the proceedings for holding the election that it was not held in that part of the precinct for which it-was ordered. The order of the probate judge was that the election be held at the usual voting place in the precinct. The probate judge haying acquired jurisdiction upon the filing of the petition, the act imposed certain duties upon him, among which was to fix the time and place of holding the election, and it will be presumed, in fixing the time and place, in the absence of proof to the contrary, that as a public officer he rightly discharged his duty. We cannot look without the proceedings had before the judge in the ordering and holding of the election, to the statements in a petition subsequent to the election filed with the probate judge, asking that the election be declared null and void- on certain grounds, for the purpose of showing that the election was not held in that portion of the precinct for which it was ordered. This is matter that does not appear on the face of the proceedings we are called upon to review. For aught that we can tell from the face of the proceedings under review, the election was held in that portion of the precinct for which it was ordered. We are not to be understood as intimating' that if it had been shown that the election was held in the precinct, but without the territory of the proposed stock law, that that would have invalidated the election.. This question, under the view we have taken, need not be decided.

We find no error in the record, and the judgment appealed from will be affirmed.

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