Mizell v. State

• Decision Date: 16 May 1911
• Citation: 173 Ala. 434,55 So. 884
• Parties: MIZELL ET AL. v. STATE EX REL. GRESHAM.
• Court: Alabama Supreme Court

55 So. 884

173 Ala. 434

MIZELL ET AL. v. STATE EX REL. GRESHAM.

Supreme Court of Alabama

May 16, 1911

On Rehearing, June 27, 1911.

On Rehearing.

Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.

Statutory quo warranto by the State, on the relation of W. J. Gresham against Frank J. Mizell and others. From a judgment for relator, defendants appeal. Reversed and rendered.

W. O Mulkey and J. M. Chilton, for appellants.

Espy &amp Farmer and C. D. Carmichael, for appellee.

ANDERSON J.

This is a proceeding by the statutory quo warranto to oust the respondents, as mayor and council of the town of Samson. The respondents set up a certificate of a majority of the then existing town council, of September 20, 1910, certifying that they were, on the 19th of said month and year, duly and legally elected to to the offices held by them respectively.

Section 1167 of the Code of 1907 provides that a certificate of election shall be given by the council, or a majority of them which shall entitle the persons so certified to the possession of their respective offices immediately upon the expiration of the term of their predecessors, as provided by law. Section 1068 of the Code of 1907 fixed September 19th as the time for said election, and section 1164 gave the town council authority to provide for the holding of same, by appointing the managers and clerks, and to designate the polling place or places. The election was therefore authorized by law and was ordered by those clothed with legal authority to do so. If it was not held or ordered in all respects according to law, those would be considerations going to the validity of same, and not the jurisdiction or authority for same, and when the certificate of election was shown by the respondents, from those having authority to issue same, of an election held at a time and for a purpose authorized by law, and ordered by those having the authority to do so, the regularity or validity of said certificate cannot be determined or adjudicated, without passing upon the validity of the election. Section 5464 of the Code says: "The validity of no election, which may be contested under this Code, can be tried under the provisions of this chapter." It should be observed that the word "validity," and not "regularity," is used in the statute, and that it is intended to prohibit inquiry, in quo warranto, into things connected with an election, beyond mere irregularities.

The word "validity" has a well-understood technical, as well as popular, acceptation, and must receive such meaning in the courts, if its use in the statute does not suggest a different one. 29 Am. & Eng. Ency. of Law, 573; Sharpleigh v. Surdam, 1 Flip. 489, Fed. Cas. No. 12,711. We think, however, the word "validity," as used in the present statute, does not mean that the court would not have the authority to determine that what purported to be an election was not sanctioned or authorized by law--that is, that the statute authorizing same was void, or that the law did not authorize an election for the office in question, or that it related to territory not included in the law, or that the election was called or ordered by those with no color of authority; but when the election is authorized by a valid law, and is ordered by the direction of those with authority to order same, the manner of conducting or ordering same, or of canvassing the returns, are questions that cannot be gone into in quo warranto, if the statute authorizes a contest of the election.

The election in question was authorized by law, was ordered by those in authority, and the manner of ordering same, the preparation of the ballot, the designation of the particular polling place, or places, relate to the validity or regularity of the election, and do not refer to jurisdiction or legal authority for the said election, and are questions which cannot be passed upon in quo warranto, if said election can be contested under the Code of 1907. Section 1168 of the Code of 1907 expressly authorizes a contest of the election in question. Nor does section 5464 prohibit inquiry only as to grounds for which a contest is provided, and authorize the consideration of grounds not covered by the statutory grounds for the contest of the election; but it excludes inquiry into the election, if the Code authorizes a contest, whether the grounds for contest include the things complained of or not. This was the construction given section 5464 in the case of Parks v. State, 100 Ala. 634, 13 So. 756. This case was approved in the case of State ex rel. v Elliott, 117 Ala. 150, 23 So. 124, which held, however, that quo warranto was the remedy there, because the right to contest, in that instance, was given by the municipal act, and...