State v. Crook

• Decision Date: 27 June 1900
• Citation: 126 Ala. 600,28 So. 745
• Parties: STATE EX REL. PORTER v. CROOK, JUDGE.
• Court: Alabama Supreme Court

28 So. 745

126 Ala. 600

STATE EX REL. PORTER v. CROOK, JUDGE.

Supreme Court of Alabama

June 27, 1900

Appeal from circuit court, Calhoun county; John Pelham, Judge.

Mandamus by the state, on relation of one Porter, against Emmet F Crook. From a judgment dismissing the petition, plaintiff appeals. Affirmed.

This is an appeal from a final judgment rendered by the circuit court of Calhoun county, Ala., dismissing appellant's petition for a writ of mandamus or other appropriate remedial writ directed to the appellee as judge of probate of Calhoun county, commanding him to remove the books, papers, and records of his office from Anniston to Jacksonville, and at the latter place keep his office at the court house, and there open for the transaction of business, as prescribed by section 3361, Code 1896. The state of Alabama, on the relation of C.J. Porter, filed a petition in which the petitioner alleged that he owned an unpaid debt secured by mortgage, the record of which in the said probate office together with the other books, papers, and records thereof had been by respondent removed to Anniston, and there kept in an office which respondent claimed to be the probate office by reason of an election held under Acts 1898-99, to wit, "An act to provide for the permanent location of the county site of Calhoun county by vote of the qualified electors of said county," approved November 30, 1898, and an act to amend said act, which said amendatory act was approved February 1, 1899, which said act and amendment thereof are contained in Sess. Acts Ala. 1898-99, from pages 8 to 15, both inclusive, and pages 494 to 499, both inclusive; that said acts were unconstitutional, null, and void; that the court house and county site of said county were still at Jacksonville, and not at Anniston; that all pretended to proceedings under said Acts 1898-99 were null and void, by reason of the unconstitutionality and the invalidity thereof; that any pretended exercise of authority by said judge of probate in removing his office to the city of Anniston, and his failure and refusal to hold and keep open the same, and the books, papers, and records thereof, in the court house, in said town of Jacksonville, are contrary to law, and a failure in the performance of respondent's duty as such judge of probate; that petitioner is a resident citizen of Calhoun county, and has resided there more than five years; that he made a demand upon said respondent, as such judge of probate, after such removal to Anniston, that he keep his office, as such judge of probate, at the court house, in the town of Jacksonville, and open there for the transaction of business as required by law, which demand was peremptorily refused, on the ground and for the reason claimed by respondent that, by virtue of said Acts 1898-99 of the general assembly of Alabama, and proceedings thereunder, the county site of said county had been removed from Jacksonville to Anniston, where he had opened up the probate office of said county for the transaction of all the business of the office, and that he would continue henceforth to hold the said office in Anniston. The petition is full and formal in its allegations, and properly verified by affidavit of the petitioner. Upon filing and inspection of the petition, Hon. John Pelham, as judge of the Seventh judicial circuit of the state of Alabama, ordered that it be entertained by the circuit court of Calhoun county, and issued an alternative writ, returnable into the said court. Respondent accepted service of the original petition and alternative writ, and entered an appearance in the said circuit court in said cause, and when court met appeared in the court, and filed a demurrer to the petition, the grounds of which were as follows: "(1) For that said petitioner fails to show a sufficient interest to authorize the granting of the relief prayed for in said petition; (2) for that no sufficient ground is stated in said petition why an order should be issued requiring said defendant to remove all the books, records, and papers thereof from Anniston to Jacksonville; (3) for that it appears upon the face of the petition that the probate judge refused to return the records from Anniston to Jacksonville upon the ground that the county site of said county of Calhoun had been by law removed from said town of Jacksonville to the city of Anniston, and said petition fails to show, by any sufficient averment, that the county site of said county has not been so by law removed; (4) for that it is alleged as a conclusion in said petition that the act or acts under and in pursuance of which the county site of Calhoun county was removed from the town of Jacksonville to the city of Anniston are unconstitutional and void, but fails to show wherein or in what respect the said act or acts of the legislature are invalid or unconstitutional; (5) for that said petition fails to set forth the provisions of the act or acts of the legislature which are alleged to be unconstitutional and void, and fails to set forth the proceeding or proceedings under said act or acts of the legislature which are alleged to be unconstitutional and void; (6) for that it does not appear that the said act or acts of the legislature referred to in the petition are unconstitutional or void, or are in any respect invalid or inoperative; (7) for that the court will judicially know that the county site of Calhoun county has been removed by law from Jacksonville to Anniston." The court sustained the demurrers, against petitioner's objection and exception, and, petitioner declining to amend, the court rendered final judgment dismissing the petition out of court, to which petitioner objected and excepted. Appellant's assignments of error on this appeal raise the question of the correctness of the judgment of the lower court in sustaining respondent's demurrer and dismissing the petition.

McClellan, C.J., and Haralson, J., dissenting.

Browne & Dryer, for appellant.

Thos. W. Coleman, Jr., and Knox & Bowie, for appellee.

TYSON J.

The two acts passed by the general assembly during its sessions 1898-99, one approved November 30, 1898 (Acts 1898-99, p. 8), entitled "An act to provide for the permanent location of the county site of Calhoun county by a vote of the qualified electors of said county," and the other approved February 1, 1899 (Acts 1898-99 p. 494), entitled "An act to amend an act entitled 'An act to provide for the permanent location of the county site of Calhoun county, by a vote of the qualified electors of said county,' approved November 30, 1898," embody all the provisions necessary for the making of a choice between the two places named in the acts, to wit, Anniston and Jacksonville, as the site for the county court house of Calhoun county, by an election to be held thereunder. To particularize, they provide for the ordering of the election by a board of commissioners named, at which persons are to be allowed to vote possessing certain qualifications therein specified; notice of the time and the purpose for which the election is to be held to be given by this board of commissioners; the appointment by the board of registrars, inspectors, clerks, and returning officers; the registration of voters; the opening and closing of the polls; the places where the election is to be held; the canvass by the board at the court house in Jacksonville, on a designated day, of the vote cast; and a certificate by the commissioners who compose the board, in writing, of the result of the election, to be filed and recorded in the office of the judge of probate. They also prescribe the duties of the registrars, inspectors, clerks, and returning officers; the oaths to be administered to each of these officers; and, as we have said, the qualifications of the electors, which are expressed in an oath to be administered by the registrar to each elector, to be subscribed by such elector, before registering. In short, the entire machinery for the holding of the election is expressly provided in detail in these acts themselves, without resort having to be had to any other law in force regulating elections. Indeed, all legislative intention that general laws regulate elections to be held in the state is conclusively excluded by the fact that the whole conduct and management of the election and the ascertainment of the result is intrusted to the board of commissioners, who are in no way connected with the conduct and management of elections under the general laws. Not a member of this board is an officer of the state or of the county of Calhoun upon whom is devolved the duty of an election officer under the general statutes.

Objections are taken to these acts upon grounds involving their constitutionality, and, really, these objections constitute and present the only questions for consideration. Instead of garnering them out of the allegations of the petition for ourselves, we will state them substantially, as they are set out in appellant's counsel's argument: (1) The provision of the acts requiring inspectors to number each ballot with the number to corespond with the number opposite the elector's name on the poll list violates section 2 of article 8 of the constitution, which ordains that "all elections by the people shall be by ballot, and all elections by persons in a representative capacity shall be viva voce." (2) The provisions of the act in reference to registration, by express and penal terms, exclude certain classes of qualified electors, in violation of section 1 of article 8 of the constitution. (3) The act being entirely at variance with the existing election laws of the state, and being confined in its operation to one county, contravenes section 5 of article 8 of the constitution, which provides: ...