Taliaferro v. Lee

• Decision Date: 03 January 1893
• Citation: 13 So. 125,97 Ala. 92
• Parties: TALIAFERRO v. LEE. HILLIARD v. BROWN.
• Court: Alabama Supreme Court

13 So. 125

97 Ala. 92

TALIAFERRO v. LEE.

HILLIARD v. BROWN.

Supreme Court of Alabama

January 3, 1893

Appeal from circuit court, Pike county, and appeal from circuit court, Conecuh county; John P. Hubbard, Judge.

Two petitions,-one by Charles T. Taliaferro, by writ of certiorari, to review proceedings between Taliaferro and Robert A. Lee, had in the circuit court of Conecuh county, to try title to the office of probate judge, to which Taliaferro was declared elected; the other, by W. J. Hilliard, to review proceedings had in another contested election, in Pike county, in which T. H. Brown contested his right to the office in litigation. Petition and writ dismissed in the case of Taliaferro against Lee. Proceedings quashed in the case of Hilliard against Brown.

M. N Carlisle, Parks & Gamble, and R. L. Harmon, for appellant Hilliard.

Gardner & Wiley, for appellee Brown.

Farnham & Crum, Stallworth & Burnett, Bowles & Rabb, H. M. King, and E. W. Godbey, for appellant Taliaferro.

A. A Wiley, for appellee Lee.

HEAD J.

These cases present, in some respects, similar questions, and we will consider them in one opinion. In the first case, Charles T. Taliaferro and Robert A. Lee were opposing candidates for the office of judge of probate in Conecuh county at the August election, 1892; and, in the other, W. J. Hilliard and T. H. Brown were opposing candidates for the same office in Pike county. Taliaferro and Hilliard were, respectively declared elected by the boards of supervisors of their respective counties, and certificates of election were issued to them. Lee and Brown each instituted in his county, before the judge of the circuit, a proceeding under the statute (Code 1886, art. 4, § 428) to contest the election of his adversary. Trials were had before the circuit judge, the Honorable John P. Hubbard, whereon it was determined that the contestants, Lee and Brown, had been, respectively, elected and were entitled to be inducted into their respective offices, and it was so adjudged. By the writ of certiorari, each of the contestees brings his case before this court for review of the proceedings before the circuit judge.

Independently of the remedy for the trial of the right to a public office by information in the nature of a writ of quo warranto, and to the exclusion of that remedy in cases falling within the purview of the statute, chapter 4, title 6, pt. 1, of the Code of 1886, provides for contests of the election of persons declared elected to any office, whether state, county, representatives in congress, or to any office which may be filled by a vote of the people, before special tribunals therein created for the purpose, and upon the grounds, and according to methods of procedure, therein prescribed. The special causes or grounds for or upon which this special jurisdiction may be invoked by any person desiring to contest the declared election of another to such an office are defined by this statute to be (1) malconduct, fraud, or corruption on the part of any inspector, clerk, returning officer, or board of supervisors; (2) when the person whose election to such office is contested was not eligible thereto at the time of such election; (3) on account of illegal votes; (4) offers to bribe, or bribery, or any other misconduct calculated to prevent a fair, free, and full exercise of the elective franchise. But no person shall contest the election of any person on account of race, color, or previous condition of servitude. Code, § 396. The procedure prescribed provides that the contestant must make a statement in writing setting forth specifically (1) the name of the party contesting, and that he was a qualified voter when the election was held; (2) the office which such election was held to fill, and the time of holding the same; and (3) the particular ground or grounds of such contest,-which statement must be verified by the oath of the contesting party, or some one for such party, to the effect that he believes the same to be true. Code, § 397. Other and ample provisions are made in respect to the tribunals for trying the contests, notice, the production of evidence, and the trial, etc. Jury trials are secured to the contestees in certain cases. Section 428 reads as follows: "To contest any election for the office of judge of probate, the party contesting must file his grounds of contest in the office of clerk of the circuit court, and give security for the costs, to be approved by the clerk of the circuit court of the county in which the election was held. The contestant must make the statement of the grounds of such contest, and give notice to the person whose election is contested, in the mode prescribed in sections 397 (303) and 409 (316.) Such contest must be heard and decided by the judge of the circuit court of the county where the election was held, and the rules of procedure prescribed by the preceding article, so far as applicable, shall govern in such contests." The preceding article, referred to, prescribes the procedure for contesting elections, before judges of probate, to offices filled by the vote of a single county, except members of the general assembly, and judges of probate, and justices and constables. These are, in general, the main features of the statute under which these proceedings were had. This statute is assailed by the contestees as violative of that provision of the constitution of Alabama which guaranties the right of trial by jury, and of section 1, art. 14, of the constitution of the United States, which provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. The proposition is that the statute is unconstitutional, in the respects stated, because the contestant is not, by the statute, secured the right to demand a trial by jury, and because the right is secured to the contestee in all cases where the election is, by the vote of a single county, except members of the general assembly; thereby, as contended, unlawfully discriminating against contestants in all cases, and against contestees who are elected by the vote of districts, or other larger area than a single county.

By the principles of the common law, no person has such private, inherent right in or to a public office to which he has or claims to have been elected as entitles him, in a contest with an adversary claimant, to a trial of such right by jury. Indeed, in the early history of the common law, even after the invention of the original writ of quo warranto, no remedy, of any character, existed for the trial of the right to, or recovery of, an office, by an individual. A public office was not deemed by the common law to be such private property of the person appointed to exercise its functions as that the courts organized for the enforcement of private rights were open to him to recover it from the usurpation of another. The writ of quo warranto was the remedy of the sovereign, against one who usurped or claimed any office or franchise, to inquire by what authority he supported his claim. The judgment was of ouster and forfeiture of the office or franchise to the sovereign, if the respondent failed to show lawful right to exercise or enjoy the same. No individual could obtain the writ, and the right of no person other than the incumbent proceeded against to exercise the office could be inquired into or adjudicated. Later, by legislation in England, the writ partook of a criminal nature, and was used to fine and punish the usurper, as well as oust him; and it thereby became known and designated as an "information in the nature of the writ of quo warranto." The province of this remedy by information in the nature of the writ of quo warranto was enlarged by the statute of 9 Anne, c. 20, (1711,) which gave to private individuals the power of proceeding thereunder against any one who had unlawfully usurped or intruded into any office or franchise, and under that statute it grew in practice to be regarded as a civil remedy for the trial of the private right of individuals to offices and franchises. But at no period in the history of the information in England, so far as we are aware, was the relator or respondent ever regarded as entitled to trial by jury until that right was expressly conferred by act of parliament. 3 Geo. cc. 2-25. As was said by the supreme court of Arkansas in State v. Johnson, 26 Ark., at page 292, that "statute was passed for the special purpose and to the end that his majesty's courts at Westminster might be provided with juries to try questions of fact. If this right existed before this time it was certainly a work of supererogation on the part of parliament to enact the law, and the inference to be drawn from this fact is that prior to the date of the statute the issues of fact were tried by the court, even in cases of informations in the nature of quo warranto, which at best is but little more than a summary proceeding to ascertain the right to an office." The remedy, as it existed under the statutes of England at the settlement of this country, came to us, and became a part of our common law, and, indeed, as a civil remedy, under the operation of the statute of Anne, it was recognized and enforced in this state prior to adoption by our own legislature. In the constitution of Alabama of 1819, the supreme court was given power to issue the writ, and that power was preserved in each of the subsequent constitutions, and is now embraced in section 2, art.

6, of the constitution of 1875 . Since the adoption of the Code of 1852, to the present time, the supreme court has also, by statute, been invested with original jurisdiction in the issue and determination of writs of quo warranto (or, what is meant, the information in the nature of the writ of quo...