Rainwater v. State ex rel. Strickland

• Decision Date: 23 February 1939
• Docket Number: 7 Div. 548.
• Citation: 237 Ala. 482,187 So. 484
• Parties: RAINWATER ET AL. v. STATE EX REL. STRICKLAND ET AL.
• Court: Alabama Supreme Court

187 So. 484

237 Ala. 482

RAINWATER ET AL. v. STATE EX REL.

STRICKLAND ET AL.

7 Div. 548.

Supreme Court of Alabama

February 23, 1939

Rehearing Denied March 30, 1939.

Appeal from Circuit Court, Talladega County; R. B. Carr, Judge.

Proceeding in nature of quo warranto by the State, on the relation of J A. Strickland, J. A. Nicholls and S. P. DeLoach, and said relators for themselves, against Earl Rainwater, Wallace Veazey and J. F. Thompson. From a judgment for relators defendants appeal.

Reversed and remanded.

L. H Ellis, of Columbiana, for appellants.

Knox, Dixon & Dixon and George F. Wooten, all of Talladega, for appellees.

BROWN Justice.

Action in the nature of quo warranto, authorized by §§ 9932, 9938, of the Code, instituted on the relation of appellees, Strickland, Nicholls and DeLoach, against appellants to oust appellants from the office of Aldermen of the Town of Childersburg, a municipal corporation, the relators joining as plaintiffs, seeking their installation in said offices.

The sufficiency of the complaint is not questioned, but the court sustained a demurrer to defendants' pleas 3, 6, 7, 8, 9 and 10, the defendants refused to plead over, suffered judgment and appeal. Pleas 3, 6, 7 and 8 go to the right of the relators to invoke judicial interposition to oust the defendants, and pleas 9 and 10 go to the right of the relators to be installed in said offices.

The respondents insist, first, that the relators by participating in the calling of the election, in standing as candidates therein against respondents, and declaring the results, affirming the election of the respondents by a majority of the qualified electorate, are estopped to invoke the court's jurisdiction and power to oust them from said offices; and, second, that said relators by their conduct voluntarily abandoned said offices and are not entitled to be restored thereto.

The facts out of which the controversies arise, as shown by the pleadings, briefly stated are: At an election held on the third Monday in September, 1936, the relators, along with Moody and Keith, were elected respectively to the office of Aldermen of the Town of Childersburg, and assumed the duties and exercised the functions of said office, along with M. J. Cliett as Mayor, until midnight of September 30, 1938. On August 2, 1938, the Board of Mayor and Aldermen of said town, constituted as above stated, passed a resolution which was entered on the minutes of said Board calling an election to be held in and for said town by the electorate on the 19th day of September, 1938, for the election of a Mayor and five Aldermen, whose term of office should begin on October 1, 1938, and expire on the 30th of September, 1940, and fixed the time for the qualifications of candidates who desired to stand for election to said offices.

On September 3, 1938, the said Board as so constituted met in special session, completed the plans for holding said election, recognized the proper qualifications of the candidates who had filed as such candidates, including the relators and respondents, provided for the appointment of the officers to serve in holding said election, canvassing the votes and making due return to the Board of Mayor and Aldermen as then constituted. The election was held on the date named by the officers appointed by the Board, the votes canvassed and due returns made showing that Boaz received the majority of the votes for mayor; that Moody and Keith, two of the Board as then constituted, received a majority over their opponents; and that the respondents Thompson, Veazey and Rainwater defeated the relators Strickland, Nicholls and DeLoach These returns were approved by the then Board of Mayor and Aldermen of the town, and Boaz, Moody, Keith, Thompson, Veazey and Rainwater were by resolutions of the Board unanimously adopted, declared duly elected to said offices, and without objections entered upon the discharge of the duties thereof, Cliett, Strickland, Nicholls and DeLoach voluntarily retiring therefrom. The pleas further aver that respondents were by the voluntary conduct and acts of said Board invited and induced to participate in said election, and caused to spend time and energy in procuring their election to said offices.

Plea 9, after stating the facts above outlined embodied in some of the other pleas, further avers: "The petitioners by their voluntary action, as aforesaid, vacated said offices as members of the Council of said municipality, and are now estopped from being reinstated therein by the judgment of this court."

Plea 10, after stating said facts, avers: "Prior to the commencement of this action and before these respondents assumed the duties as members of the Council of the Town of Childersburg, Alabama, petitioners as hereinbefore shown and set out voluntarily abandoned their membership as members of said Town Council of said Town of Childersburg, Alabama, and thereby estopped themselves from now being reinstated thereto in the present proceedings."

Section 1754 of the Code of 1923 provides that: "The regular municipal elections in cities and towns shall be held on the third Monday in September, 1908, and biennially thereafter. Municipal officers elected at such elections shall assume the duties of their respective offices on the first Monday in October following such election, unless herein otherwise provided. The voting places shall be fixed by the council, one or more voting places for each ward, where such city or town has been divided into wards, and the election shall be conducted in the manner provided by law for general elections, except as otherwise provided."

This section of the Code was amended by the Act approved September 9, 1927, by adding a proviso thereto which related to cities of over two thousand population, making the offices in such cities elective quadrennially. Acts 1927, p. 706.

The Legislature at the regular session 1931, ignoring the Act of 1927, amended this same Section 1754, to like effect as the Act of 1927, except in the 1931 Act the section was rewritten. Acts 1931, p. 436.

The Legislature at the regular session 1935, ignoring the last amendment of 1931, by Act No. 516 amended the amendatory Act of 1927 so as to read: "The regular municipal elections in cities and towns shall be held on the third Monday in September, 1936, and quadrennially thereafter. Municipal officers elected at such elections shall assume the duties of their respective offices on the first Monday in October following such election, unless herein otherwise provided. The voting places shall be fixed by the Council, one or more voting places for each ward, where such city or town has been divided into wards, and the election shall be conducted in the manner provided by law for general elections, except as otherwise provided in this chapter. Provided that this shall not affect cities under commission form of government." Acts 1935, p. 1105.

The controversy here arises out of ignorance of this last amendment on the part of the Mayor and Aldermen of Childersburg. Not a mistake of fact but ignorance of the law. "Ignorantia juris quod quisque tenetur scire, neminem excusat." Black's Law Dig. p. 590. [ Italics supplied.]

The election was held on the third Monday in September, 1938, and but for this last amendment it would be in all things regular.

Section 1886 of the Code, provides: "If the election hereinbefore provided for should not take place on the day appointed, the corporation shall not for that cause be dissolved, but the incumbents shall remain in office until their successors shall be elected and qualified. The council shall fix some day, as early as convenient, on which day said election shall be held, which election shall be conducted in all respects as a regular election, and the persons so elected shall hold their office until the next general election and until their successors are elected and qualified."

While it must be conceded that time, place and a qualified electorate are the essential elements of a valid election and that statutes specifying the date of holding an election are regarded ordinarily, as mandatory, nevertheless, we find many well considered authorities holding that statutes providing for periodical elections in municipalities are merely directory. In fact, the weight of authority, in numbers at least, is to this effect. Ann.Cas.1913E, page 374; 19...