13 Ala. 805 | Ala. | 1848
The circuit judge, in the exercise of the powers conferred on him by the act of 1840, prescribing the manner in which elections for sheriffs and clerks shall be contested, acts as the supervisor of the election, or the returning officer, for the purpose of advising the executive, whether the election is legal or illegal; and if legal, who was elected, in order that a commission may issue to him. In exercising these powers, he does not set as a judge pronouncing definitively on the rights of the opposing candidates to the office. See The State ex. rel. Thompson v. The Circuit Court Judge of Mobile, 9 Ala. Rep. 338; Womack v. Holloway, 2 Ala. Rep, 31. In this case the election was held — Spence was declared elected by the managers — it was contested in the mode prescribed by the act — and the circuit judge certified that Terry was elected. The first question therefore presented is, will a mandamus issue to the managers, or supervisors, of an election in favor of the party elected, if they have given a certificate of election to one not elected? In the case of Rix as the Mayor of York, Mr. Withers moved for a mandamus to have the corporate seal put to his certificate of election, alledging that he was duly elected recorder. This was apposed by the corporation, on the ground that Sinclair had received a majority of the votes at the election, and was duly declared elected, upon which the corporation certified his election to the secretary of state, that the king might approve of him. The rule was granted, and on the return, it appearing that Withers, and not Sinclair, had received a majority of the legal votes, a mandamus was awarded. See 4 Durnford & East Rep. €99, 5 vol. 66. And in the case of Strong, 20 Pickering, 484,' it was held, that a mandamus would lie to the board of examiners, to compel
The office the petitioner claims, is that of sheriff of Talladega county, and we have seen that the circuit judge, in the exercise of the powers conferred by the act of 1840, acts as the returning officer, or manager of the election; clothed it is true, with the power to re-examine, and re-count the votes, and to reject such as are illegal. Yet his acts are not judicial, nor conclusively binding on the rights of the parties. This being the character in which he acts, a mandamus will lie, to compel him to give a certificate of election to the office of sheriff, or clerk, to the party legally elected, when it is withheld by the judge from him. See the case in 9 Ala. R. 338.
It then becomes necessary to ascertain in the first place, if Spence was duly elected sheriff of Talladega county. He was declared elected by a majority of two votes — Terry contested his election before the circuit judge — the votes were recounted by him, and evidence was taken by both parties to show that illegal votes had been given, and also to show, that the election had not been legally held at several precincts. The circuit judge pronounced, that Terry was elected, and in his return to the rule which was heretofore granted, he states, that he found in the ballot box at Hendricks’ precinct, for Terry, six more votes than had been counted for him by the managers, and after rejecting all the votes shown to be illegal, whether given for Terry or Spence, that those six votes gave Terry a majority of two votes. He also states in his return, the votes he deemed illegal, and which were by him rejected, and the evidence upon which he judged them illegal. Also, the votes that each party contended were illegal, but which were allowed by him as legal votes, and the evidence produced to show their illegality,
The votes actually given at the election, the legality, of which is contested, are fourteen in number. Of these six were given for Spence; James Hanson, Thomas Waites, Jesse Blassingame, John Lienbaugh, JohnShannin, and John Bonner. Smoot offered to vote at the election, but his vote was not received, and he would have voted for Spence. On Mason’s vote, the word Pence was written, but this was rejected by the managers of the election, at which the vote was given, because he declared, when called on by the managers in counting the votes, that he did not intend to vote for sheriff at all. Of the votes contested, that were cast for Spence, three were rejected by the presiding judge — James Hanson, jr., Thomas Waites, and Jesse Blassingame.
The evidence is conclusive to show, that neither Hanson, nor Waites were twenty-one years old. These two votes were therefore properly rejected. But we think that Blassingame was a legally qualified voter ; he came to the county of Talladega in 1845, and lived with his grandfather until some time in 1846, when he volunteered and went to Mexico. He returned to Talladega in May or June, 1847, and still continues to reside with his grandfather — although it is shown that his father resides in Marshall county, it is not shown that the voter had any other residence than in the county of Talladega, or that he claimed any other. It may be fairly inferred that the voter considered Talladega as the county of his residence, and his grandfather’s as his house; his vote therefore should not have been rejected. It is contended, that the vote of Mason, on which was written the word Pence, should have been counted for Solomon Spence. The testimony shows, that the managers of the precinct where it was given, on the evening of the day of the election, on counting out the votes, called on the voter to know if he intended by it to vote for Spence. He then stated he did not, that he did not intend to vote for sheriff at all, and therefore had written on his ticket the word Pence. After this declaration, made by the voter, we think the managers properly refused to count this vote.
It is perhaps unnecessary to inquire whether the mana
The managers at the court house certified, that Solomon Spence received 711 votes; the circuit judge rejected three •cast for him, when he should have rejected only two; this would give Spence 709. Terry received, according to the returns of the managers at the court house, 709 — eight of which are contested as illegal, five of these eight were rejected by the circuit judge as illegal, to wit: the votes of Norton, Shelly, McCattery, Harrell, and William B. Easley, the sheriff of the county; and three were allowed as legal voters, to wit: the votes of J. F. Hunt, Robert Houston, and .John Johnson. The testimony of Shelly shows, that Talladega had been the county of his residence; that in the fall of 1845 he went to Wetumpka, with the intention of remaining during the business season, and then of returning to Talladega ; that he has always considered Talladega as the county of his residence, and only intended remaining in Wetumpka during the winter, or business season ; that in May, 1846, he returned to Talladega, and joined a volunteer company raised in that county, and went to Mexico; he returned to Talladega in May or June, 1847, and has resided in that county ever since, and never has intended to abandon his residence in Talladega county. His testimony is not contra-
Harrell’s vote is also a legal vote ; he had been raised in Talladega county, and resided with his mother until the year 1847. He went to Coosa county and taught school three months, but never intended to abandon his residence. He returned to Talladega, a month or two before the election, where he still resides; certainly his absence from Talladega for a few months, on business, without any intention of becoming a citizen of any other county, or of abandoning his residence in Talladega, cannot deprive him of the political rights of a citizen of Talladega county. The circuit judge should not have rejected his vote. When a man has acquired a domicil by birth, or residence in one county, and goes to another county, or country, the question whether he has changed his domicil, depends mainly on the fact, whether his new residence is temporary or permanent — whether for the purpose of accomplishing a temporary object, or whether he intends it as his fixed abode. If the departure from one’s fixed abode is for a purpose in its nature temporary, whether on business or pleasure, accompanied with the intention of returning, and he does return, without having altered his intention during his absence, such a departure, or absence from his domicil, will not deprive him of any of his rights, civil or political. See 1 Metc. Rep. 250; also, Knox v. Watmaugh, 3 Greenl. R. 455.
Having ascertained that these two votes should have been allowed for Terry, it is unnecessary to examine the legality ■of each vote any farther. We will not therefore determine whether Easley, the sheriff of the county was entitled to vote, -or whether any other of the eight contested votes' for Terry were legal or not; for if Terry is entitled to the six additional votes found in the box for him at Hendricks’ precinct, then Spence did not receive a majority of the legal votes giv•en at the election.
It is contended that the evidence shows that these additional six votes should not be allowed for Terry. The evidence is, the return of the managers, showing that Terry received fifty-two votes, also, Joshua B, Starns, who acted as
It is certainly true that the ballots, or votes themselves, are higher evidence than the certified lists, or number of votes sent by the managers at each precinct, to the managers at the court house, and if either party received more votes than were counted for him by the managers, the judge would correct this mistake, and count for each party all the votes given for him, even if they were not correctly numbered by the managers, on the day of the election. See 9 Ala. Rep. 338. This we do not understand to be contested, but it is said, that the ballots were not “ sealed up and secured ” as the statute directs: and on the contrary, the box has been opened, and the list of voters examined that was in the box, between the election and the time of the examination by the judge.
We think it beyond doubt true, that it is the election that entitles the party to the office, and if one is legally elected to an office, by receiving a majority of legal votes, the managers at the time of the election being legally appointed, and duly qualified to act as such, his rights to the office ought not to be divested by any omission of the managers, after it is held, or negligence on their part in not preserving the votes in the manner prescribed by the statute. It might be asked, if the managers could divest the right of the party elected, by any act whatever, if he were able to show that he was duly elected. The rule that has obtained, not only in the congress of the United States, but also in some of the legislatures of the States, is, that if the votes are legal, and the officers appointed to conduct the election are properly qualified, then omission, or neglect to make return within the time, or according to the mode prescribed by the legislature, does not vitiate the election, nor divest the title of the successful candidate to the office. In the matter of the contested election, between Yan Rensselaer and Allen, one of the irregularities complained of was, that after the election, the ballot box was tied with tape, and. not locked as required by the law of New
Having attained this conclusion, the next inquiry is, did; Terry actually receive six votes more at Hendricks’s precinct, than were counted for him by the managers. Six were found in the ballot box, and it is not shown that there were more votes or ballots found in the box, than there were voters, according to the list of voters. It is not shown that these six votes were surreptitiously placed in the box; indeed, two of the managers swear, that they believe he received more than were counted for him, and certified to the managers at the court house; and Lewis, whose list or tally was certified, has not been examined. Starns, the other clerk, only says, that he thought at the time, that his list agreed with that of the other clerk. Under this proof, and in the absence of all proof that these six additional votes for Terry were fraudulently inserted into the ballot box, after the election was over, we cannot come to the conclusion that they should be rejected, but on the contrary, think that the circuit judge properly allowed them for Terry.
It is then certain, that Spence was not elected sheriff, and therefore he is not entitled to a certificate of election to that office. But it is contended, that the testimony shows, that at Rhinehartfs precinct, where Terry received a large majority, the managers were not sworn at all, aqd hence the votes at this precinct should be rejected, and the election declared void, for it is contended, that to make Vfre election
The writ of mandamus will only be granted when there is a specific legal right, and there is no adequate legal remedy to enforce it. ‘ See 1 Ala. Rep. 15. If the right of the party applying for the writ, be merely equitable, the writ will not be granted. See The King v. The Managers of Stafford, 3 Term Rep. 651. And a fortiori it will not be granted, when the party applying for it, has no specific right, either legal or equitable. In the case of The King v. The Abp. of Canterbury, 8 East, 219, Lord Ellenborough said, in all cases there ought to be shown a clear specific right, as well as the want of a' specific legal remedy, before the writ can be granted; and as the applicant did not show any legal right which he claimed, more than was possessed by any other of his majesty’s subjects, the writ could not be granted.
Spence not being elected, what specific right has he, in
Let the rule heretofore granted, be discharged.