Doughty v. Bryant

• Decision Date: 12 January 1933
• Docket Number: 6 Div. 246.
• Citation: 226 Ala. 23,145 So. 420
• Parties: DOUGHTY v. BRYANT ET AL.
• Court: Alabama Supreme Court

145 So. 420

226 Ala. 23

DOUGHTY v. BRYANT ET AL.

6 Div. 246.

Supreme Court of Alabama

January 12, 1933

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Bill for injunction by J. H. Doughty against W. Cullen Bryant and others. From a decree sustaining a demurrer to the bill and dismissing it, complainant appeals.

Affirmed.

Horace C. Wilkinson, of Birmingham, for appellant.

Fitts &amp Fitts, of Birmingham, for appellee.

BROWN J.

It is well settled that, for one in possession of a public office to invoke the aid of a court of equity to protect his proprietary interest therein by injunctive process, he must show a continuing prima facie right to occupy the office as against his adverse claimant. Casey v. Bryce, 173 Ala. 129, 55 So. 810; Wright et al. v. Cook et al., 216 Ala. 270, 113 So. 252.

This principle is limited to the incumbent in possession to protect a proprietary right, and does not extend to a mere citizen and taxpayer who has no proprietary right, and whose only right is in common with the general public. Wright et al. v. Cook et al., supra.

Taking the averments of the bill as true, the only office in which the complainant had any proprietary interest is the office of alderman of ward 5 of the municipality of Homewood, to which he was elected, and upon which he entered on the first Monday in October, 1928; that in a popular election held in the municipality, on the 19th day of September, 1932, he was a candidate for re-election, and was opposed by the respondent Overton and one Charles Kunz; that in said election complainant received 401 votes, Overton received 452 votes and Charles Kunz received 520 votes; that on the 20th of September, 1932, the city council of Homewood met and canvassed the returns of said election, and adopted a resolution declaring the result, and directing the issuance of a certificate of election to Overton and Kunz.

The right of Kunz to enter into and exercise the duties and functions of the office is not questioned by the bill. But the complaint alleges in substance that Overton violated the Corrupt Practice Act, in that he failed to designate a committee to receive contributions in aid of his candidacy and to file an itemized, sworn statement thereof with the judge of probate of Jefferson county, and therefore his election to the office of alderman of ward 5 is void and of no effect. Code 1923, § 582 et seq.

We are clear to the...