Parks v. State

• Decision Date: 27 July 1893
• Citation: 100 Ala. 634,13 So. 756
• Parties: PARKS v. STATE EX REL. OWENS. HILLIARD v. STATE EX REL. BROWN. WORTHY v. STATE EX REL. REEVES. GIBSON v. STATE EX REL. ALLEN.
• Court: Alabama Supreme Court

13 So. 756

100 Ala. 634

PARKS v. STATE EX REL. OWENS.

HILLIARD v. STATE EX REL. BROWN.

WORTHY v. STATE EX REL. REEVES.

GIBSON v. STATE EX REL. ALLEN.

Supreme Court of Alabama

July 27, 1893

Appeals from circuit court, Pike county; John R. Tyson, Judge.

Four proceedings, tried together, on informations in the nature of quo warranto, brought by the state on the relation of A. H Owens, T. H. Brown, L. Reeves, and T. J. Allen, against William H. Parks, W. J. Hilliard, Oglethorpe Worthy, and M V. Gibson, respectively, to contest the declared result of the election of respondents to the offices, respectively, of judge of the criminal court, judge of the probate court clerk of the circuit court, and tax collector of Pike county Ala., to which offices relators claimed to be elected. From a judgment in favor of each of the relators, respondents appeal. Reversed.

John Gamble, M. N. Carlisle, and R. L. Harmon, for appellants.

Gardner & Wiley and A. A. Wiley, for appellees.

STONE C.J.

These four cases were by consent tried together in the circuit court, and by like consent were argued and submitted in this court as one case. The facts in each of the cases are substantially the same, and each and all of them are dependent on the same legal principles. They were informations in the nature of quo warranto, intended to test the correctness and legality of the declared result of the election of certain county officers of Pike county, who were voted for at the August election in 1892. They are proceedings under chapter 14, tit. 2, pt. 3, of the Code of 1886, commencing with section 3170 of that compilation of statutes. The chief defense relied on is that under our system the remedy invoked in these cases is not open to the relators, and that for that reason the judgments should have been in favor of the defendants. This defense was raised by demurrer and by plea or answer to the petition. The circuit court ruled against its sufficiency, and granted relief to the relators. From that judgment the present appeal is prosecuted.

At the time this election was held,-August, 1892,-we had a statutory system ^[1] in force which provided expressly for a contest of the election of each of the officers which furnish the subject of the controversy shown in this record. It was very comprehensive in its terms, embracing "the election of persons declared elected to any office, whether state, county, representatives in congress, or to any office which may be filled by a vote of the people," and it provided that the contest might be inaugurated "by any qualified elector." It enumerated the causes of such contest, under four specifications, as follows: "(1) Malconduct, fraud or corruption, on the part of any inspector, clerk, returning officer, or board of supervisors. (2) When the person, whose election to such office is contested, was not eligible thereto at the time of such election. (3) On account of illegal votes. (4) Offers to bribe, or bribery, or any other misconduct calculated to prevent a fair, free and full exercise of the elective franchise; but no person shall contest the election of any person on account of race, color, or previous condition of servitude." A contest under this statutory provision was required to be instituted within a prescribed time, which had elapsed when these proceedings were instituted. The statute remained as stated supra until it was re-enacted-somewhat modified in form and substance-by act approved February 10, 1893, (Sess. Acts 1892-93, p. 468.) The later statute expressly repealed the former one, as to all the provisions which affect the question presented by the record before us; but it expressed an additional ground of contest,-"on account of the rejection of legal votes." We have, since 1852, had another statutory system in force, by which the right of persons exercising official functions can, in certain conditions, be tested. It is an information in the nature of a quo warranto, and commences with section 3170 of the Code of 1886. Its provisions, as applicable to the case before us, are that "when any person usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this state, or any office in a corporation created by the authority of this state," an action may be maintained to redress the wrong. This mode of redress, and of ousting persons illegally in office, had long been in force, and received additional vitality and energy from the English statute of Anne. Many of the states have enacted statutes regulating its use, so that it has gotten into very general use, as a means of getting rid of persons who intrude into, or unlawfully hold, public offices. In many of the states, as in our own, they recognize the continued existence of this remedy, while at the same time they, like ourselves, have special statutes providing for a contest of elections. And the question has often been raised, whether such statutory contests, when provided for, take the place of, and supplant, the common-law writ of quo warranto, or, rather, information in the nature of quo warranto. The general ruling on this question is that the statutory contest does not displace the older remedy by quo warranto, unless the statute so declares, or it is implied in its terms; that in the absence of such expression or implication the statutory remedy is cumulative. In McCrary on Elections, (section 345,) the principle is thus expressed: "The true doctrine seems to be that a special remedy given by statute is cumulative, and not exclusive of the ordinary jurisdiction of the courts, unless the manifest intention of the statute be to make such special remedy exclusive, and such intention must be manifested by affirmative words to that effect." Mechem, Public Officers, (section 24,) says: "In several of the states, special tribunals have been created for the trial of election contests, but where this is not the case the ordinary courts of law are to be resorted to. Where such a special tribunal has been created, individuals desiring to institute proceedings must, where such appears to have been the intention, have recourse to that tribunal alone, and cannot, in general, resort to the courts of law." In Paine on Elections, (section 860,) is this language: "When the statute creates a special tribunal, and prescribes special proceedings, for the trial of contested election cases, and the tribunal to which jurisdiction is given is vested with full powers to adjudicate all questions involved in such cases, the courts will not take jurisdiction by quo warranto, at common law, even in cases of fraud on the part of the officers of election, or candidates." In High of Extraordinary Legal Remedies, (section 617,) the doctrine is thus stated: "Where a specific mode is provided by statute for contesting elections, and a specific tribunal is created for that purpose, and the method of proceeding therein is fixed by law, resort must be had to the remedy thus provided, and proceedings by information in the nature of a quo warranto will not be entertained." The quotations from the last two authors are supported by Com. v. Leech, 44 Pa. St. 332; Com. v. Garrigues, 28 Pa. St. 9; Com. v. Baxter, 35 Pa. St. 263; State v. Marlow, 15 Ohio St. 114; People v. Every, 38 Mich. 405. The following authorities hold that the enactment of special provisions, or the creation of a special tribunal,-one or both,-does not, without more, supplant or take away the right to controvert and try the validity of an election under quo warranto proceedings: Attorney General v. Barnstow, 4 Wis. 567; State v. Messmore, 14 Wis. 115; People v. Hall, 80 N.Y. 117; Kane v. People, 4 Neb. 509; State v. McKinnon, 8 Or. 493; People v. Holden, 28 Cal. 124; State v. Frazier, (Neb.) 44 N.W. 471; People v. Londoner, (Color. Sup.) 22 P. 764; State v. Boyd, (Neb.) 48 N.W. 739; Dudley v. Mayhew, 3 N.Y. 9; 1 Dill. Mun. Corp. § 202; 2 Dill. Mun. Corp. § 891.

We do not consider it necessary to discuss or criticise the somewhat varying phraseology employed in the foregoing citations. The case we are considering must be determined by the language of our statute, and its proper interpretation. As part and parcel of our statutory quo warranto system, it is provided (section 3177 of the Code of 1886) that "the validity of no election which may be contested under this Code can be tried under the provisions of this chapter." This whole chapter, with all its provisions, was adopted and made part of the Code of 1852, commencing with section 2651 of that Code. Section 2654 of that compilation corresponds to section 3082 of the Code of 1867, section 3422 of the Code of 1876, and to section 3170 of the Code of 1886. Section 2664 of the Code of 1852 was in the following language: "The validity of any election which may be contested under this Code, can not be tried under the provisions of this chapter." That language was carried, without change, into the Code of 1867, § 3092, and into the Code of 1876, § 3432. The slight change in the words of the section, as shown in the copy first above given, is for the first time found in the Code of 1886, § 3177. That change in the words cannot lead to a change of interpretation, for the phrase, "the validity of any election cannot be tried," is certainly the synonym and equivalent of that other phrase, "the validity of no election can be tried."

Several cases of controverted elections have been before this court while our statutory provisions governing the remedy of quo warranto, as applicable to such cases, have remained substantially unchanged. Some of those provisions we have copied above. The cases of Ex parte Lambert, 52 Ala. 79; Ex parte Harris, Id. 87; Moulton v. Reid, 54 Ala. 320; and Hudmon v. Slaughter, 70...