State v. Kitchens

• Decision Date: 31 May 1906
• Parties: STATE EX REL. HAMILTON v. KITCHENS.
• Court: Alabama Supreme Court

41 So. 871

148 Ala. 385

STATE EX REL. HAMILTON v. KITCHENS.

Supreme Court of Alabama

May 31, 1906

Rehearing Denied June 30, 1906.

Appeal from Circuit Court, Walker County; A. H. Alston, Judge.

"To be officially reported."

Quo warranto by the state, on relation of H. W. Hamilton, against Calvin Kitchens. From a decree dismissing the petition relator appeals. Reversed and remanded.

The application was as follows: "Your petitioner and relator, the state of Alabama, on the relation of H. W Hamilton, respectfully represents unto your honor that he is a householder and freeholder, and resides in school district 35, in Walker county, Alabama, and that on the 1st Saturday in July, 1904, an election was held in said school district of the qualified electors thereof, at which said election three school trustees for said district were regularly elected, to wit, Frank Ellis, Robert Kilgore, and relator, as was by law provided. (2) That relator was regularly elected at said election as trustee, and has at all times since been ready and anxious to assume and discharge the duties of the office, but that he has been prevented from so doing by reason of the fact that Calvin Kitchens has usurped the functions of said office and still exercises the same without authority of law. (3) Your petitioner and relator showeth further that Lige Dutton received only one legal vote and five illegal votes at said election, and that petitioner received four legal votes, and that Lige Dutton was disqualified from holding said office, in that he was not a householder and freeholder of said school district, and that Calvin Kitchens received one illegal vote at said election and, further, that your petitioner received a majority of the legal votes cast at said election for Lige Dutton, Calvin Kitchens, and petitioner, and that Calvin Kitchens is disqualified from holding said office in that he is unable to read and write as the law requires. And that Calvin Kitchens has usurped all the duties and functions of said office and is acting, discharging the same, and enjoying the privileges thereof, regardless of petitioner's right. (4) That notwithstanding relator was voted for and elected trustee as aforesaid, he having received more of the legal votes cast at said election than the said Lige Dutton, a vacancy was declared to exist by the then acting superintendent of education, R. D. Argo, and a second election was ordered by him to be held on the _______ day of _______, 1904, by the qualified electors of said district, to fill the alleged vacancy caused by the disqualification of said Dutton, and for the holding of which election there is no provision of law. At the second election Calvin Kitchens was chosen trustee, and has thereafter usurped and performed all the duties of such trustee, regardless of the fact that your relator has at all times since the first Saturday in July, 1904, been ready and willing to assume the duties himself, but that he has been illegally restrained from so doing as above set out." The prayer was that Calvin Kitchens show by what warrant or right he is exercising the function of school trustee for said school district, and that the said Calvin Kitchens be declared to be usurping the function of said office, and that he should be excluded from further exercising said duties, and that relator's rights to such trustee be established.

The respondent demurred to the petition on the following grounds: "(1) Said petition is filed in the name of the 'State of Alabama ex rel. H. W. Hamilton.' (2) Said petition is not in compliance with section 3426 of the Code of 1896. (3) Hamilton is not joined in said petition as relator or plaintiff. (4) Said petition is inconsistent and repugnant, in that it declares that both Hamilton and Dutton were elected to fill the office of school trustee. (5) It does not allege any acts committed by respondent showing that he has usurped any of the duties of the office. (6) Quo warranto is not the proper method of determining who was regularly elected to this office. (7) Relator has his remedy of contest to said election. (8) Petition shows that there was a vacancy in said office by the disqualification of Dutton, and that respondent was elected to fill same. (9) Petition shows that the proper remedy was mandamus, directed to the county superintendent, to issue credentials or commission to fill same to relator. (10) Because that a school trustee is not a public officer."

There was judgment sustaining demurrers, and the relator, declining to plead over, brings this appeal.

Shere & Cooner, for appellant.

Bankhead & Bankhead, for appellee.

HARALSON J.

The case was heard and decided, dismissing the petition, on March 18, 1905.

On March 24th, the relator made an application for a new trial, which was continued to be heard at an adjourned term. On April 22, 1905, the motion for a new trial was heard and denied.

The Code provides that appeals may be taken in quo warranto proceedings, within ten days after judgment,...