Dennis v. Prather
| Decision Date | 27 January 1925 |
| Docket Number | 4 Div. 198 |
| Parties | DENNIS et al. v. PRATHER et al. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Russell County; J.S. Williams, Judge.
Bill in equity by John Prather and others against T.H. Dennis and others. Decree for complainants, and respondents appeal. Affirmed.
W.J Bird, of Phoenix, F.M. de Graffenried, of Seale, and Denson & Denson, of Opelika, for appellants.
W.H Merrill, of Eufaula, and B. de G. Waddell and H.A. Ferrell, both of Seale, for appellees.
Prior to 1901 the Legislature possessed plenary powers in the location and removal of county seats. Marengo County v. Matkin, 134 Ala. 275, 288, 32 So. 669. The Constitution of 1901, § 41, declares:
"No courthouse or county site shall be removed except by a majority vote of the qualified electors of said county, voting at an election held for such purpose, and when an election has once been held no other election shall be held for such purpose until the expiration of four years."
This provision is a limitation upon the legislative power, and aside therefrom the plenary power of the Legislature remains as theretofore. By Act approved March 3, 1903 (Acts 1903, p. 117), the Legislature made provision for elections upon the question of removal of county seats. The substantial provisions of this Act now appear as sections 267 to 299 of the Code of 1923. Sections 267 and 268 read as follows:
A county in which a new courthouse has been built within 20 years of filing the petition is thus expressly excepted from the removal statute. Such county is withdrawn from its operation. The effect is, that in a county so situated, no lawful removal of the county seat may be had. No "board of commissioners of county seat election" is authorized in such county.
One major inquiry here presented is, how is the operation of the law in a given county to be ascertained, and by what tribunal is it to be determined? The appellants contend that this authority is vested in the Governor, and that the judicial department should not interfere with the exercise of executive power. Section 298 of the Code of 1923 reads as follows:
It will be noted that the Governor is vested with two matters of discretion: First, whether the petition is made in good faith by persons desiring a removal of the county seat; second, where there are two or more bona fide petitions seeking a removal to different locations, he may choose the one which, in his judgment, is best calculated to result in a permanent location of the county seat. In the exercise of this discretionary power the courts cannot interfere. Armstrong v. O'Neal, 176 Ala. 611, 58 So. 268; State ex rel. Brown v. Porter, 145 Ala. 541, 40 So. 144; Pryor Motor Co. v. Hartsfield, 207 Ala. 646, 93 So. 524; Crenshaw v. Joseph, 175 Ala. 579, 597, 57 So. 942.
The statute nowhere expressly requires the Governor to determine whether a courthouse has been built in the county within 20 years; that is, to determine whether the law is operative in the county; but the insistence is that he is charged with the duty to ascertain the conditions calling for executive action. The executive duty imposed upon the Governor is the appointment of the board of commissioners. Whatever preliminary findings he must make are incidental to the exercise of this executive function. The executive must frequently determine whether he is called upon to exercise his executive appointing power. For example, many cases arise of supposed vacancies in office. Necessarily he must determine whether there is a vacancy and proceed to fill it. But it has never been supposed that his decision that a vacancy exists is final. The inquiry whether there is a lawful office to be filled, and whether a vacancy has occurred therein, are matters essentially judicial in character. It is the duty of the judicial department to determine what the law is. This duty extends to questions involving whether executive acts are authorized by law. Clark v. State ex rel. Graves, 177 Ala. 188, 59 So. 259.
The removal proceedings before the Governor are purely ex parte. There is no provision for notice and hearing by parties opposed in interest. We are of opinion that the appointment of commissioners by the Governor is not conclusive, and it is the duty of the courts to determine whether the law is operative in Russell county at this time, whether the lawful office of commissioner of county seat election has come into being, and whether the appointee is holding a lawful office or not.
A question further presented is, has a court of equity any jurisdiction to enjoin the holding of the removal election? The general rule without question is that courts of equity will not interfere by injunction with the holding of elections political in character, nor take jurisdiction of a contest after the election is held. But this court is committed to the proposition that equity will interfere by injunction to restrain elections nor authorized by law. It will also restrain the usurpation of office, or the assumption of functions of office where no lawful office exists. In City of Mobile v. Mobile Electric Co., 203 Ala. 574, 578, 84 So. 816, 819, the bill was filed to enjoin the holding of an election approving a municipal ordinance intended to reinstate the rates for service charges by a public utility. The court found that the rates proposed to be reinstated had never been lawfully suspended. Speaking b...
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Wilkinson v. Henry, 6 Div. 603.
... ... not fall within the provisions of section 549 of the Code, as ... that section has been construed and applied in the recent ... case of Dennis et al. v. Prather et al., 212 Ala ... 449, 103 So. 59, still this section evinces a legislative ... policy that excludes the idea of establishing ... ...
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Wood v. Booth
...§ 17-15-6], which formerly appeared in the 1940 Code as Tit. 17, § 235, do not prevent the enjoining of an election.11 Dennis v. Prather, 212 Ala. 449, 103 So. 59 (1925). See also Birmingham Gas Co. v. City of Bessemer, 250 Ala. 137, 33 So.2d 475 "`Furthermore, "`"In Dennis v. Prather, 212 ......
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McInnish v. Bennett
...or results of the election be the point of attack.’ ” King v. Campbell, 988 So.2d 969, 977 (Ala.2007) (quoting Dennis v. Prather, 212 Ala. 449, 452, 103 So. 59, 62 (1925), which construes a predecessor statute to § 17–16–44 ).An election contest can occur only after an election has taken pl......
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Henry, Ins. Com'r v. Donovan
... ... conferred on them by law, to determine whether their action ... is good or bad." See, also, Dennis v. Prather, ... 212 Ala. 449, 103 So. 59, where it was held that equity may ... enjoin notwithstanding legislation apparently restricting ... ...