May v. Head

• Decision Date: 14 June 1923
• Docket Number: 4 Div. 48.
• Citation: 96 So. 869,210 Ala. 112
• Parties: MAY v. HEAD.
• Court: Alabama Supreme Court

96 So. 869

210 Ala. 112

MAY v. HEAD.

4 Div. 48.

Supreme Court of Alabama

June 14, 1923

Rehearing Denied June 30, 1923.

Appeal from Circuit Court, Crenshaw County; Arthur E. Gamble, Judge.

Contest by B. W. Head of the election of S.W. May. From a judgment sustaining the contest, contestee appeals. Appeal dismissed.

James J. Mayfield, of Montgomery, and Ira B. Thompson, of Luverne for appellant.

Powell & Hamilton, of Greenville, for appellee.

SAYRE J.

Appellee contested the election-which had been declared by the officers in charge-of appellant to the office of mayor of the town of Brantley. At the hearing in the circuit court the contest was sustained, and appellee's right to the office adjudged, after which this appeal.

Appellee moves the court to dismiss the appeal, and our judgment is that the motion should be granted.

Section 470 of the Code of 1907 provided for the contest of an election to the office of the judge of probate. Such contests were to be had in the circuit court. Contests of elections to the office of "justice of the peace, constable, or any office filled by the vote of a single county" were, by section 471, to be tried in the probate court. Appeals in cases of contested elections were provided for in the Code of 1907 by section 476, which reproduced in terms section 1702 of the Code of 1896, as follows:

"In all contested elections before the judge of the probate court an appeal lies to the Supreme Court within five days after the rendition of the judgment. From the judgment or decree of the chancellor on the contest of an election of the judge of the circuit court, an appeal lies to the Supreme Court which must be taken within five days after the rendition of decree or judgment. From the judgment of the circuit court on the contest of an election of a chancellor or of a judge of probate, an appeal lies to the Supreme Court within five days after the rendition of the judgment."

Prior to the Code of 1907, there was no provision by statute for contesting the elections of officers of cities and towns. Ham v. State ex rel. Buck, 156 Ala. 654, 47 So. 126. Of course, then, section 476, when it was written, had nothing to do with cases in which the election to city or town offices were contested. The Code of 1907 undertook to correct the situation shown by the absence of any provision for the contest of election in the case of city or town officers by the introduction of section 1168, as follows:

"The election of any person to a city or town office may be contested upon the same grounds and in the same manner provided for contesting elections for judge of probate, so far as applicable."

Appellant's contention is that by the last quoted section the Legislature disclosed its intent to provide for appeals in cases of contests of election of city and town officers. We find in it nothing more than a regulation of the grounds and manner of contests in such cases as in case an election for judge of probate is contested, such grounds and manner of contests being provided by sections of the Code other than 476. It has been observed that, by section 476:

"From the judgment of the circuit court on the contest of an election of a chancellor or of a judge of probate, an appeal lies,"

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