97 Ala. 92 | Ala. | 1892
— These cases present, in some respects, similar questions, and we will consider them in one opinion.
In the first case, Chas. T. Taliaferro' and Bobert A. Lee were opposing candidates for the office of judge of probate in Conecuh county, at the August election, 1892, and in the other, W. J. Hilliard and T. H Brown were opposing candidates, for the same office, in Pike county. Taliaferro and Hilliard were, respectively, declared elected by the boards of supervisors of their respective counties, and certificates of election were issued to them. Lee and Brown each instituted in his county, before the judge of the circuit, a proceeding under the statute, Code 1886, Art. IY, Section*, 428, to contest the election of his adversary. Trials were' had before the circuit judge, the Hon. Jno. P. Hubbard, wherein it was determined that the contestants, Lee and Brown had been, respectively, elected and entitled to be inducted into their respective offices, and it was so adjudged. By the writ of certiorari, each of the contestees brings his case before this court for review of the proceedings before the circuit judge.
Independently of the remedy for the trial of the right to a public office, by information in the nature of a writ of quo
Section 428 reads as follows: “To contest any election for the office of judge of probate, the party contesting must file his grounds of contest in the office of the clerk of the circuit court, and give security for the costs to be approved by the clerk of the circuit court of the county in which the election was held; the contestant must make the statement of the grounds of such contest and give notice to the person whose election is contested, in the mode prescribed in seci tions 397 (303) and 409 (316). Such contest must be heard and decided by the judge of the circuit court of the county where the election was held; and the rules of procedure prescribed by the preceding article, so far as applicable,
This statute is assailed by the contestees as violative of that provision of the Constitution of Alabama which guarantees the right of trial by jury; and of section 1 Article XIY of the Constitution of the United States which provides that no State shall deny to any person within its jurisdiction the equal protection of the laws. The proposition is that the statute is unconstitutional, in the respects stated, because the contestant is not by the statute, secured the right to demand a trial by jury, and because the right is secured to the contestee in all cases where the election is by the vote of a single county except members of the General Assembly, thereby, as contended, unlawfully discriminating against contestants in all cases and against contestees who are elected by the vote of districts, or other larger area than a single county. By the principles of the common law, no person has such private, inherent right in or to a public office to which he has, or claims to* have been elected, as entitles him, in a contest with an adversary claimant, to a trial of such right by jury. Indeed, in the early history of the common law, even after the invention of the original writ of quo warranto, no remedy of any character existed for the trial of the right to, or recovery of an office by an individual. A public office was not deemed by the common law to be such private property of the person appointed to exercise its functions, as that the courts, organized for the enforcement of private rights, were open to him to recover it from the usurpation of another. The writ of quo warranto was the remedy of the sovereign against one who usurped or claimed any office or franchise, to inquire by what authority he supported his claim. The judgment was of ouster and forfeiture of the office or franchise to the sovereign if the respondent failed to show lawful right to exercise or enjoy the same. No individual could obtain the writ and the right of no person than the incumbent proceeded against to exercise the office could be inquired into or adjudicated. Later, by legislation in England, the writ partook of a criminal nature, and was used to fine and punish the usurper, as well as oust him; and it thereby became known and designated as an information in the
But at no period in tbe history of tbe information in England, so far as we are aware, was tbe relator or respondent ever regarded as entitled to trial by jury, until that right was expressly conferred by act of parliament, 3 Geo. Ch. 2,25. As was said by tbe Supreme Court of Ark., in State v. Johnson, 26 Ark. at page 292, that “Statute was passed for tbe sj)ecial purpose and to the end that bis majesty’s courts, at Westminster, might be provided with juries to try questions of fact. If this right existed before this time, it was certainly a work of supererogation on tbe part of parliament to enact tbe law, and tbe inference to be drawn from this fact is, that prior to tbe date of tbe statute, tbe issues of fact were tried by tbe court, even in cases of informations in tbe nature of quo warranto, wbicb at best is but little more than a summary proceeding to ascertain tbe right to an office.” Tbe remedy, as it existed under tbe statutes of England at tbe settlement of this country, came to us and became a part of our common law, and indeed, as a civil remedy, under tbe operation of tbe statute of Anne, it was recognized and enforced in this State prior to adoption by our own legislature. In tbe Constitution of Alabama of 1819, tbe Supreme Court was given power to issue tbe writ, and that power was preserved in each of tbe subsequent constitutions, and is now embraced in section 2 Article YI of tbe constitution of 1875. Since tbe adoption of tbe Code of 1852 to tbe present time, tbe Supreme Court has, also, by statute, been invested with original jurisdiction in tbe issue and determination of writs of quo warranto (or what is meant, tbe information in tbe nature of tbe writ of quo warranto) in relation to matters in wbicb no other court has jurisdiction. — Code, 1852 § 578 subdiv. 2; Rev. Code § 660, subdiv. 2; Code, 1876, § 571 subdiv. 2, and Code of 1886, § 675 subdiv. 2. In all these provisions, both of tbe several constitutions and statutes, this writ has been classed with tbe extraordinary remedies of mandamus, injunction, habeas corpus and certiorari wbicb have always been determinable by tbe court, both upon issues of law and fact, without tbe
Early in the legislation of this State, the essential features of this information, as it existed and was enforced under the statute of Anne, and as we had theretofore administered it as a part of our common law, was incorporated into our statute law, and is now embodied in Chap. 14, Title 2, Part 3 of the Code of 1886. The statute is substantially the same as that which first appeared, in codified form, in the Code of 1852, and was subsequently introduced in the Codes of 1867 and 1876. This statute plainly recognizes the proceeding as one triable by the court; and though isolated cases may have arisen on which judges, in this State, have called juries to try disputed questions of fact in proceedings under this statute, as in Echols v. Dunbar, 56 Ala. 131, we are persuaded it has been the common understanding of the bench and bar, and their common practice, to treat the remedy as an extraordinary proceeding, triable by the court without a jury. We hold, therefore, that in proceedings to try the right to a public office there was no common law right of the suitor to a trial by jury, and hence, such suitor is not within the protection guaranteed by that clause of the bill of rights which provides that the right of trial by jury shall remain inviolate. We are well satisfied of the correctness of this view that we are unwilling to be led to a contrary conclusion by the dictum found in Burnett v. State, 2 Ala. 140.
Hence, it is that in the enactment of statutes providing new and additional remedies for suitors of this class, like the laws for the contests, of elections before special tribunals, now under our consideration, the conferring of jury trials is purely of legislative grace, and may be conferred according to legislative discretion, if the enactment does not assume the character of what is denominated class-legisla tion.
There is no element of class legislation in the present stat
The statute, as applicable to the present cases, provides that the statement required to be made by the party contesting must be presented to the judge of the Circuit Court, within fifteen days after the person whose election is contested is declared duly elected, and such judge must appoint a day not less than fifteen nor more than twenty days from the time of such presentation for the trial thereof and indorse the same on such statement. — Code § 416. A copy of such statement, with the day of trial endorsed thereon, must be served on the person whose election is contósted, or left at his usual place of residence, at least ten days before the day appointed for trial. — Code § 418. In the ease of Taliaferro against Lee, it appears the judge omitted to make the prescribed indorsement, when the statement was presented to him, but on the 7th day of September, 1892, made upon a paper attached to the statement an order setting down the cause for trial on the 26th day of September, 1892, at the court house of Conecuh county. The sheriff’s return shows that a copy of the statement was served on the contestee on the 8th day of September, 1892. It appears from the final judgment entry that the cause was regularly continued until the 14th day of October, 1892, on which day the trial occurred. The judgment entry contains this recital: “And now on this the 14th day of October, 1892, the day to which
It is insisted that the proceedings in Taliaferro against Lee should be quashed for the want of proof that Lee was a resident citizen and qualified voter of Conecuh county. That does not appear to have been made a real issue on the tri&lIt is true the answer of Taliaferro to the statement begins with a general denial of all the allegations of the statement, but it proceeds thereafter to answer specially the charges upon which the proposed contest is based, and we find no special denial of the residence and qualification of contestant as a voter, as alleged in the statement. No question of the kind was raised on the trial. There is the testimony of at least two witnesses tending to show Lee’s presence in the county, and his participation in public meetings therein, prior to the election, ancl-it appears that he was voted for for the office of probate judge by not far from one half or more than one half the voters of the county, voting at the election. These are circumstances tending in some degree, to prove the allegation in question. Their sufficiency was for the trial judge.
There is no other question presented by the record for review, in the case of Taliaferro against Lee. There appears a large volume of testimony adduced on the trial, and we are asked by counsel to pass upon the relevancy and admissibility of much of it, but upon examination we find that no ruling of the trial judge upon any question of evidence is shown by the record. We find in the transcript a motion to exclude certain testimony therein designated, but if any ruling upon the motion was invoked or had, the record does not clisclose it. Our revisory power on certiorari extends only to questions of jurisdiction and the regularity of the proceedings. — McAllilley v. Horton, 75 Ala. 491. If there was any evidence, however slight, tending to support the findings of the trial court on the facts, we have no authority to revise such finding. There was such evidence, and there being no ruling of the court raised by the record touching the relevancy and admissibility of the evidence, we can not
In the case of Hilliard against Brown a more serious question confronts us. Was the petition or statement filed by Brown sufficient, in its averments, to confer jurisdiction of the subject-matter upon the circuit judge? We have stated the essential provisions of the statute. It cannot, we think, be doubted that the grounds of contest which section 428, above copied, requires the contestant to set forth in the statement he is required to make, are those grounds or causes, or one or more of them, specified in section 396. That section, as we have seen, expressly prescribed the four causes there set down as the grounds of contest in all cases of contest of election of persons declared elected to any office, whether State, county, representative in congress or any office which may be filled by a vote of the people. The several provisions of the chapter, comprising articles 1 to 6 inclusive, are in pari materia, constituting one general system or body of laws for contestation of elections to public offices, and must be construed together, and effect given to each and every provision. Placing sections 396, 397 and 428 together, and construing, as we must, each with reference to, and as a part of, the others, the legislative intent that the statement required to be made by section 428, must set forth one or more of the causes prescribed by section 396, could not be made more plainly to appear. We have then the mandate of the statute that the four mentioned causes shall, one or more of them, be the grounds upon which a person desiring to contest the declared election of another may invoke the remedy prescribed; that a written statement of the contestant’s complaint must be made to the tribunal created to hear and determine it, and that that statement must set forth the particular ground or grounds 'relied on. It is a principle of law too long and well settled to be now the subject of contention, that the record or quasi record of a court or tribunal of special, limited jurisdiction, created by statute, whose proceedings are required to be written, must affirmatively disclose every fact upon which, by the statute, the jurisdiction of the court or tribunal is made to depend, in order to sustain the jurisdiction and uphold the validity of the judg
Does the statement of contestant, Brown, contain an averment of either of these necessary jurisdictional facts? A mere inspection of the paper would constrain us to hold it does not. It is conceded by counsel that the second, third and fourth grounds prescribed by section 396 are not set forth or relied- on. The first ground, as we have seen, is thus stated in the statute: “Malconduct, fraud or corruption on the part of any inspector, cleric, returning officer or board of supervisors.” It would seem unnecessary to discuss the meaning of the words, “malconduct, fraud or corruption” as they are here used. They are of such obvious signification as to preclude discussion. Corruption, the strongest term used, carries its own force and meaning. Fraud, a term less strong, means, in the connection in which it is used, actual fraud, evil motive, wickedness. Malconduct, a term still less strong, means essentially the same thing. Webster defines the prefix “mal” as ill or evil, derived from latin modus, meaning lad, ill; from which also we derive malice, malicious. It is manifest, therefore, that the conduct of the inspector, clerk, returning officer or board of supervisors made by the statute a ground of contesting an election must have proceeded from evil motive, wickedness of purpose on the part of the designated officers of election and not from mere omissions of official, duty — mere negligence on their part. The statement, in the present case, given the most latitudinous construction, does not approximate a charge of malconduct, fraud or corruption on the part of either of the officers mentioned in the statute. We will not repeat the averments here. It is enough to say that none of them charges more than simple negligence — mere failure to exercise that effi
A majority of the court are of opinion that section 432 of Code confers a right of appeal in cases like the present, and that certiorari is not the proper remedy. The question, however, was not raised in these cases. Beturns were made to the writs of certiorari, and the parties went to .trial upon their merits without objection to the methods by which the cases were brought before us. We therefore considered them on their merits.