Armstrong v. O'Neal

• Citation: 176 Ala. 611,58 So. 268
• Court: Supreme Court of Alabama
• Decision Date: 04 April 1912
• Parties: ARMSTRONG v. O'NEAL, GOVERNOR.

58 So. 268

176 Ala. 611

ARMSTRONG v. O'NEAL, GOVERNOR.

Supreme Court of Alabama

April 4, 1912

Appeal from Circuit Court, Montgomery County; W. W. Pearson, Judge.

Mandamus by B. W. Armstrong against Emmet O'Neal, as Governor, to compel the Governor to order an election in a county on the question of the removal of the county seat. From a judgment of dismissal, rendered on sustaining a demurrer to the petition, plaintiff appeals. Affirmed.

Espy &amp Farmer, of Dothan, for appellant.

R. C Brickell, Atty Gen., W. O. Mulkey, and C. D. Carmichael, both of Geneva, for appellee.

SAYRE J.

Appellant alleging that he, along with others constituting a majority of the qualified electors of Geneva county, had filed their petition in writing with Governor O'Neal, praying that an election be held in that county for the purpose of determining whether the county seat should be removed from the town of Geneva to the town of Hartford, and that the Governor had denied the petition, went into the circuit court of Montgomery, asking that a writ of mandamus be awarded to compel the Governor to order an election for the purpose indicated. The circuit court sustained a demurrer to the petition for mandamus, and, the petition having been dismissed for want of amendment, this appeal was taken.

Other reasons might be assigned in justification of the court's refusal to interfere, or attempt to interfere, with the Governor's action; but we will content ourselves with the statement of one which seems to us to be entirely sufficient. In determining whether an election shall be held for the removal of a county seat, the Governor, provided he acts within the limits of his jurisdiction, that is, on a case properly presented to him under the statute, exercises a judgment and discretion which cannot be reviewed or controlled by the writ of mandamus. This is made clear by section 206 of the Code in these words: "The Governor shall not entertain any petition hereunder which he may have reason to believe is not made in good faith by persons desiring a removal of the county seat. If two or more bona fide petitions with respect to the proposed removal of the county seat of a county to two or more different points in the county shall be pending before the Governor for the appointment of commissioners, the Governor shall favor the proceeding which, in his judgment, is best calculated to result in a permanent location of the county seat." It is alleged in the petition for the writ that, on the submission to the Governor of the petition for an election it was admitted that more than a majority of the qualified electors of the county had signed the same; that a new courthouse had been built in the town of Geneva in the year 1898; that said courthouse was burned on March 15, 1911; that there was at the time no courthouse in the county; and that "the only question submitted for the consideration and determination of the Governor was whether or not he had the authority, as a matter of law and...