State v. Thomas

• Decision Date: 15 May 1913
• Court: Alabama Supreme Court
• Parties: STATE ex rel. BLISH v. THOMAS et al.

62 So. 504

181 Ala. 665

STATE ex rel. BLISH v. THOMAS et al.

Supreme Court of Alabama

May 15, 1913

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Proceeding in the nature of quo warranto by the State, on relation of M.B. Blish, against C.W. Thomas and others. From a judgment sustaining a demurrer to the petition, the relator appeals. Affirmed.

Gordon & Edington, of Mobile, for appellant.

R Percy Roach, of Mobile, for appellees.

MAYFIELD J.

This is a proceeding in the nature of quo warranto. It was instituted under section 5453 of the Code, to oust or remove appellees on the ground that they were unlawfully holding and usurping the offices of mayor and aldermen of the town of Citronelle.

The only matter alleged in the petition as a fact to support the conclusion that appellees were usurpers of the offices which they were filling was that a clerk and an inspector, who officiated as such in the election at which appellees were declared to be so elected to such offices, were not qualified electors, and were therefore incompetent to act as clerk and inspector at such election.

A demurrer was interposed and sustained to this complaint, and from the judgment sustaining the demurrer the relator prosecutes this appeal. We are of the opinion that the trial court properly sustained the demurrer. The statute in question was not intended to authorize the revision or correction of such errors as the appointment of improper clerks and inspectors of elections.

It is not necessary to decide whether such clerk and inspector of the election could be ousted, because the petition does not seek to oust them, but seeks to oust those officers who were declared to be elected at the election in which such clerk and inspector officiated, on the ground of the incompetency of the clerk and inspector of the election, and not on the ground of the incompetency of the appellees declared to be elected.

It is likewise unnecessary to decide whether or not the incompetency of the clerk and the inspector would invalidate the election, which was otherwise valid, or whether the question could or would be properly raised on a contest of the election. If the question cannot be raised on a contest it would not, for this reason, authorize a quo warranto proceeding such as is instituted in this case. On the other hand, the right of contest and that of quo warranto may both exist at the same time and on the...