State v. Hamil
| Decision Date | 01 December 1892 |
| Citation | 97 Ala. 107,11 So. 892 |
| Parties | STATE EX REL. HARMON v. HAMIL ET AL. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Pike county; JOHN P. HUBBARD, Judge.
Petition by R. L. Harmon for a writ of mandamus to compel the board of supervisors of Pike county to recanvass the votes cast in an election in which petitioner was a candidate. A demurrer to the petition was sustained, and petitioner refused to amend or to plead further, whereupon the petition was dismissed, and petitioner appeals. Affirmed.
This proceeding was commenced by a petition filed by the appellant, directed to the judge of the circuit court praying that a mandamus be issued by said judge directed to the board of supervisors of Pike county commanding them not to make the return about to be made by them, but to correct them, in accordance with the facts set out in said petition. The relator complained in said petition that the board of supervisors, in making up their statements of the returns of said counties, improperly included in their account what purported to be returns from two precincts which were in three separate boxes; that neither of the boxes were sealed, nor were the returns, or what purported to be the returns, sealed up in either of the boxes, but the papers lay loose in the boxes; that neither of the three boxes was fastened as required by law, but was simply locked with a padlock. The relator further complained that by reason of the count, and what purported to be the returns from these three boxes, he did not receive the majority of the votes cast for representative from said county in the general assembly of Alabama, but contended that, if these three boxes were not counted, the majority would be in his favor, and he would be entitled to the seat in the lower house of the general assembly. The board of supervisors had canvassed the returns made, and had certified the results to the judge of probate. The board of supervisors demurred to the petition, on the grounds- First, that said petition shows no just or legal cause why the writ of mandamus should issue; second, because it was the duty of said board of supervisors to include in their statements and certificates to the same, as required by law, the votes returned from each of the said boxes complained of; third, because, said boxes being locked as alleged, it was a substantial compliance with the statutes.
M. N. Carlisle and R. L. Harmon, for appellant.
Tompkins & Troy, for appellee.
Conceding for the sake of the argument, that relator has been aggrieved, is mandamus the appropriate remedy for redressing that grievance? Let us inquire to what extent our own decisions complicate us. What is the nature of the duties of inspectors of elections under our system? Are they, or not, purely ministerial, and, if so, is there no other adequate remedy for the redress of the grievance complained of? If there is, then mandamus cannot be resorted to. Leigh v. State, 69 Ala. 261, and authorities cited; High, Extr. Rem. § 49. In Hudmon v. Slaughter, 70 Ala. 546, the question arose on the duty of the returning board in the matter of a city election, held under the charter of the city of Opelika. The mayor and council were the returning board. The charter provided "that the votes shall be returned to the existing mayor and council, whose duty it shall be, within five days after the election, to count the votes, and compare the poll lists with the registration lists, and reject all votes cast by persons whose names do not appear registered," etc. "It is perfectly clear to our mind that the duties intended to be imposed on the board by this section are ministerial, and in no sense judicial; that they are constituted mere canvassers or supervisors of the election returns, and have no authority to exercise the judicial power of investigating or determining the validity of the election." Although it is affirmed in this case that the duties of the returning board were purely ministerial, that remark was not necessary to a decision of the question presented. The power of the court was invoked, not for the purpose of compelling the returning board to change action previously taken by it; the purpose was to compel it to act,-to canvass the votes, and make the return, the board having refused to do so. This is shown in the following language copied from the opinion: "The relator alleges the failure and...
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