State v. Elliott

• Decision Date: 05 February 1898
• Citation: 117 Ala. 150,23 So. 124
• Parties: STATE EX REL. HARRIS v. ELLIOTT.
• Court: Alabama Supreme Court

23 So. 124

117 Ala. 150

STATE EX REL. HARRIS v. ELLIOTT.

Supreme Court of Alabama

February 5, 1898

Appeal from circuit court, Etowah county.

Quo warranto proceedings by the state, on the relation of Pink M Harris, against James M. Elliott, Jr., to oust defendant from the office of mayor of the city of Gadsden. From a judgment sustaining a demurrer to, and dismissing, the petition relator appeals. Reversed.

At a municipal election held in Gadsden on the first Tuesday in March, 1897 (it being the second day of the month), the appellee was elected mayor of said city, and was in due time inducted into said office, and is now in possession of the same, exercising the authority, performing the functions, and enjoying the emoluments of the same. The petition shows that at the time of said election the appellee had not resided in said city for one year next preceding the election, and does not now reside in said city. Because of such nonresidence the appellant calls on him to show by what warrant he holds said office and exercises the authority thereof. This proceeding was instituted under part 3, tit. 2, c. 14, p 692, of the Code of 1886, and the amendatory act thereof. See Acts 1892-93, p. 789. The appellee interposed a demurrer to the petition, and among other grounds of demurrer assigned were numbers that raised the defense that under section 3177 of the Code of 1886 the court could not try the case presented on the petition.

Denson & Tanner, for appellant.

Dortch & Martin and Burnett & Culli, for appellee.

HEAD J.

By the charter of the city of Gadsden (Acts 1882-83, p. 281), a mayor is required to be elected by the people. It is provided that no person shall hold the office of mayor of the city who has not resident therein one year preceding the election. Section 14. A prescribed certificate of election is required to be given the mayor-elect, which, by the terms of the act entitles him to possession of his office immediately upon the expiration of the term of his predecessor as fixed by law,-subject, however, to the contestation of his right as at the time of the adoption of the charter was, or thereafter might be, provided by law for contesting elections of judges of probate in this state. Section 11. And by section 16 it is provided "that any election, under this act, may be contested in the same manner as is now, or may hereafter be, provided by the laws of this state for the contest of elections of judge of probate, as far as the same will apply to contests under this act." When this charter was passed, and ever since, there was, and has been, a statutory system for contesting elections of judges of probate, and other specified officers, before special judicial tribunals created for the purpose, and according to prescribed forms or methods of procedure. The proceedings, when had, are judicial, and finally determine the rights of the contestant and contestee in respect of their claims to the office. Eligibility of the person declared elected is made a ground or cause of contest, under this system. The respondent, James M. Elliott, Jr., was declared elected mayor of Gadsden, and inducted into the office, and is now discharging the duties thereof. Our Code, by a system separate from that for the contest of elections just referred to, preserves the substantial features of the pre-existing remedy by information in the nature of quo warranto, adapting to it prescribed forms of procedure. Code 1886, § 3167 et seq. By section 3177 (a part of that system) it is provided that "the validity of no election which may be contested under this Code can be tried under the provisions of this chapter." Elliott's election was not contested, but the relator in this case now proceeds by the information in the nature of quo warranto, seeking to oust him on the ground that he was ineligible by reason of nonresidence in the city for a year next preceding his election; and the sole question presented is whether or not the remedy by contest, as in cases of probate judges, given by the charter, excludes the present remedy of quo warranto. It seems to be well recognized that the general rule established by the weight of authority is that a special remedy given by statute for the contest of an election 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. Judge Dillon says, "The principle is that the jurisdiction of the courts remains, unless it appears with unequivocal certainty that the legislature intended to take it away." 2 Dill. Mun. Corp. § 141. In Parks v. State, 100 Ala. 634, 647, et seq., 13 So. 756, 757, Chief Justice Stone stated that "the general ruling on this question is that the statutory contest does not displace the...