In this case the allegations of the petition and alternative writ are sufficient to make out a prima facie case. Therefore the motion to quash is overruled.
The answer or return makes certain allegations as to the residence of the relator and as to the overlapping of election precinct lines with the commissioner's district lines, which, if true, would make an accurate recanvass of the primary election returns impossible, in so far as to the votes cast within the particular Commissioner's district in question, and hence would preclude the issuance of a peremptory writ in this case. Issue has been taken upon the allegations of fact contained in the answer. To determine this issue, testimony, and perhaps documentary evidence, would have to be submitted by the parties.
The court therefore appoints Honorable George W. Whitehurst, Judge of the Twelfth Judicial Circuit, as Commissioner to take such evidence and testimony as the parties may see fit to submit on the issues of fact thus raised, at such time and place as said Judge may fix and determine, the same to be reduced to writing and returned to this Court for its consideration.
It is so ordered.
*Page 328WHITFIELD, TERRELL, BROWN and CHAPMAN, J.J., concur.