Ex parte Shepherd

• Decision Date: 18 May 1911
• Parties: EX PARTE SHEPHERD.
• Court: Alabama Supreme Court

55 So. 627

172 Ala. 205

EX PARTE SHEPHERD.

Supreme Court of Alabama

May 18, 1911

Mandamus by J. W. Shepherd to compel the circuit judge of the Fourteenth circuit to dismiss an election contest petition. Writ denied.

Bankhead & Bankhead and E. R. Lacy, for petitioner.

W. C Davis, R. A. Cooner, and O. D. Street, for respondent.

SAYRE J.

This is an original petition in this court for a writ of mandamus to the judge of the Fourteenth circuit. Petitioner shows that at the general election held November 8, 1910, he was duly elected judge of the probate court of Walker county; that Charles M. Sartain, an opposing candidate at that election had filed what purported to be a contest in the circuit court; that petitioner had moved the court to dismiss the contest because it was insufficient to invoke the jurisdiction of the court; and that his motion had been overruled. Petitioner prays an alternative writ of mandamus or rule nisi commanding the circuit judge to show cause why the contest should not be dismissed. The circuit judge waives alternative writ or rule nisi, and defends.

The contest filed in the circuit court avers "that the returns of said election for said office as made out and certified to by the inspectors in the several precincts in said county, and by them delivered to the returning officers for the several precincts, showed the election of the said Charles M. Sartain to said office by nineteen (19) votes majority, but that, after the said returns were delivered to the several returning officers, those for four (4) precincts were unlawfully and illegally changed and altered by some person or persons unknown to the contestant, whereby it was made to appear that the said James W. Shepherd had received a majority of twenty-six (26) votes for said office." The statement of grounds of contest set forth the details of the changes alleged to have been made in each of the four precincts. It then averred "that the said Charles M Sartain was in fact elected at said election to said office; that the legal votes ascertained to have been given to him by the inspectors of said election in the several precincts at said election exceeded the legal votes given to the said James W. Shepherd for said office; that on the Friday next after the said election, at the time and place fixed by law, the board of supervisors, namely, J. O. Long, R. A. O'Rear, and Hewitt Myers, did make a statement of votes from the several precincts of the county of the whole number of votes given for the said Charles M. Sartain for said office, but that in making said statement they received and adopted the changed and altered returns as above set out, instead of adopting the true and correct returns from the several precincts, and thereby made it appear that the said James W. Shepherd, and not the contestant, the said Charles M. Sartain, was elected to said office."

One ground of the motion to dismiss the contest was that the statement did not allege a statutory ground of contest. The effort was to state a ground of contest under the first subdivision of section 455 of the Code of 1907, which provides that the election of any person declared elected to any office which is filled by the vote of a single county may be contested for the following causes: "(1) Malconduct, fraud, or corruption on the part of any inspector, clerk, marker, returning officer, board of supervisors, or other person."

In 1892 this subdivision of the section from which we have quoted was as it is now except that the concluding words "or other person" had not been added. These words appeared for the first time in the statute as codified in 1896. In Hilliard v. Brown, 97 Ala. 92, 13 So. 125, a case which arose under the law as it was in 1892, this statute in its then shape was under consideration. The averments of the statement of contest filed in that case are not shown in the report of that case, but we quote the gist of it from the transcript of the record as follows: "Your petitioner further showeth that the boxes in which said returns were made contained locks thereto, which were fastened and unfastened by a key, but the said sheriff, who was returning officer of the county, failed to remove the keys from said boxes and there was nothing to prevent any individual from unlocking said boxes, who had access to them, or who might obtain access to them; and petitioner charges that the said sheriff as returning officer did not use reasonable care in keeping the boxes containing the returns of said precinct inspectors, but kept the same in such negligent manner that evil disposed persons could obtain access thereto, and did so, and did extract from said boxes the said inspectors' certificates, so that the said board of supervisors could not count all the votes received by your petitioner," etc. After pointing out that the common law, in advance of the invention of the writ of quo warranto and apart from such use as might be made of that writ, a public office was not deemed 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, that the circuit court is a tribunal of special and limited jurisdiction in the matter of elections contested, and that the grounds upon which that court may exercise its jurisdiction in such cases are expressly prescribed, and a statement of them jurisdictional, the court said: "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 efficiency, care, and caution which should have been exercised to the end that the votes, as cast at the election, be duly counted, certified, and returned, and the true result declared. The conduct complained of, though negligent, is entirely consistent with perfect honesty and good faith. The statute, as we have shown, does not authorize a contest in such case, and the proceedings before the circuit judge were void for want of jurisdiction."

In later cases it has been held that, contests of elections being unauthorized except by statute, any material departure from the statutory mode of instituting and conducting such contests is unauthorized. Black v. Pate, 130 Ala. 514, 30 So. 434; Pearson v. Alverson, 160 Ala. 265, 49 So. 756. There is, however, no reason for placing contests of elections in a class different from other special statutory proceedings in which the record must affirmatively show facts conferring jurisdiction. The facts averred may be sufficient to invoke the exercise of jurisdiction, though they be averred defectively. This rule has had frequent illustration in cases in which the validity of sales of land under the authority of the probate court have been drawn into question. McCreary on Elections says: "It may be stated as a general rule, recognized by all courts of this country, that statutes providing for contesting elections are to be liberally construed, to the end that the will of the people in the choice of public officers may not be defeated by any merely formal or technical objections." Section 431. The language of Paine on Elections is: "The inquiry involved in a contested election case is one which deeply concerns the public. The question is broader than the mere claim of an individual to the office in controversy. It is whether the popular will has been or is about to be defeated, or thwarted, by mistake or fraud. If, therefore, the statement of the grounds of contest lack the clearness and distinctness of allegation always desirable in judicial proceedings, it is not on that account to be peremptorily dismissed. An opportunity to amend should be afforded, to the end that the points in controversy may be developed, or the merits of the case determined." Section 840. The rule here stated is a reasonable one, nor is it out of line with our own decisions in which it has been held that the statement of contest must show the court's jurisdiction to try the contest, and that amendments seeking to introduce new grounds of contest cannot be allowed after the expiration of the period prescribed by statute for the institution of contests. Black v. Pate, and Pearson v. Alverson, supra.

Petitioner's insistence is that the statement of contest filed was insufficient to invoke the jurisdiction of the circuit court in that it fails to aver that the changes made in the returns of election, alleged to have been made by some person or persons to the contestant unknown,...