Wilson v. Duncan
| Decision Date | 15 April 1897 |
| Citation | 114 Ala. 659,21 So. 1017 |
| Parties | WILSON v. DUNCAN. |
| Court | Alabama Supreme Court |
Appeal from city court of Talladega; John W. Bishop, Judge.
Mandamus on application of M. M. Duncan, to the special judge of the probate court of Talladega county. From a judgment against the judge, Thomas J. Wilson appeals. Dismissed.
The proceedings in this case arose from the appellant, Thomas J Wilson, filing a contest in the probate court of Talladega county, in which he contested the election of the appellee M. M. Duncan, to the office of tax collector of Talladega county. On the day of the institution of the contest he filed a bond, under section 417 of the Code of 1886, limiting the amount to $500 for the costs of the contest, which bond was approved by the judge of probate of Talladega county on the day of its filing. The probate judge certified his incompetency to hear the contest, and James B. Newman, a practicing attorney of said county, was appointed to hear the contest. The other facts of the case are sufficiently stated in the opinion.
Appeal from judgment on mandamus to judge, requiring him not to proceed with an election contest pending before him unless bond for costs as required by statute be given, cannot be taken by and in the name of contestant.
G. W Parsons, J. W. Vandiver, A. P. Longshore, and Tompkins & Troy, for appellant.
E. H. Dryer, Knox, Bowie & Dixon, W. B. Castleberry, and Whitson & Graham, for appellee.
1. The act creating the city court of Talladega confers on said court all the authority, jurisdiction and powers within said county, which had been conferred, at the time of its enactment, or which might thereafter be conferred by law, on circuit or chancery courts of the state; and upon the judge of said court, within the state and county, the same authority and powers, and the same duties as a circuit judge or chancellor has and performs, within the state and within his circuit or division, etc. Acts 1892-93, p. 541.
Both city and circuit courts, having like jurisdiction in civil matters, can issue writs to probate courts or probate judges, in all cases warranted by the principles and usages of law, and have the power, "to exercise a general superintendence over all inferior jurisdictions." State v. Williams, 69 Ala. 315; Towns v. State (Ala.) 20 So. 598; State v. Rogers (Ala.) 19 So. 909.
2. Section 417 of the Code provided, that when a contest was begun for any office by a contestant, before the judge of probate,-as provided for in the article of the Code of which said section was a part,-he "must, also, at the same time, give security for the costs of such contest, to be approved by such judge; but in no case shall such judge require security for more than five hundred dollars." In this case, the judge of probate, acting on the supposition that said section was still of force, and had not been repealed, required and took from the contestant a bond and security for costs according to its provisions, in the sum of $500.
The main contention in this case is, as to whether said section has been repealed or not.
On February 10, 1893, the legislature passed an act, entitled "An act to provide for and regulate contests of elections to offices, state and county herein [therein] named." Acts 1892-93, p. 468. This act, as it was intended, provided a new system for the contest of elections to office in this state, and by number, expressly repealed all the sections of the Code from section 396 to 434, inclusive, relating to the same subject. In the published acts, however, said section 417 does not appear as having been repealed, but, of all the sections in articles 1 to 6, inclusive, this one appears to have been left unrepealed. Much time, research and argument of counsel on both sides, have been devoted, on the one side, to show that the said section has not been repealed, and that the legislature had no intention to repeal it, and on the other, that the provisions of the new law are inconsistent with it, and repealed it by implication,-the failure of the legislature to include it in the repealing clause of the act, being an inadvertence or oversight. All this contention, however, is put to rest by an examination of the enrolled act as it appears in the office of the secretary of state, in which said section is mentioned among the others which were repealed. Its omission from the printed act, was the result of mistake. The legislative record, of course, governs. Jones v. Hutchinson, 43 Ala. 721; Moody v. State, 48 Ala. 115; Moog v. Randolph, 77 Ala. 597; Henderson v. State, 94 Ala. 95, 10 So. 332; Suth. St. Const. § 28; Sedg. St. & Const. Law, p. 55.
3. Section 3, subd. 3, of said act of 1893, provides, "that at the time of commencing such contest, and of the filing of the said statement in writing [the one required to be filed, setting forth the prescribed averments for a contest,] the party contesting must give security for the cost of such contest, to be filed and approved as hereinafter provided." Section 5 makes provision for the contest of the election of a senator or representative to the general assembly; 6 for that of chancellor; 8 for judge of the circuit court; 9 for judge of probate, and as to each, the requirement is, that the contestant "must give good and sufficient security for the cost of such contest," to be approved by the officer designated.
In section 10, under which the contest in this case arises, the provision is, that the person contesting etc.
Section 13 provides that, "In all cases, the person whose election is contested, if he be the successful party in such contest, is entitled to judgment for the cost thereof, against the party contesting and his sureties, for which execution may issue returnable to the court of probate, or to the court of chancery, or to the circuit court,"-in whichever court the contest may have been tried.
Section 3 of the act requires, etc.
From the foregoing recitals of the provisions of said act, it appears that two things are necessary to the proper institution of a contest proceeding under said statute: (1) That the statement provided for, shall be filed as required; (2) "and at the time of commencing such contest, and of the filing of the said statement in writing, the party contesting must give security for the cost of such contest, to be filed and approved," as provided in each particular case. Without a compliance with each of these provisions, in form at least, the judge before whom the contest is to be tried, has no right to proceed. The language of the statute, as applicable to the case in hand is clear;-"such statement having been filed, and security for costs given, the judge of probate must appoint a day for the trial of such contest," etc. We need indulge no argument in support of a proposition which lies so open on the surface.
4. The bond which was filed and approved in the case, was not the one required by the statute, and as for the due prosecution of the proceeding, without more, it was just the same as if no bond had been filed at all. If good, it was good as a common-law, but not as a statutory, bond,-one on which the contestee, if successful, would have to sue to recover costs and then, the recovery would be limited to the amount of the penalty. Hilliard v. Brown, 103 Ala. 318, 15 So. 605; Adler v. Potter, 57 Ala. 571. The bond required by this statute is for the costs of the contest, not within prescribed limits, but all the costs, in unlimited amount, on which, at the conclusion of the trial, if favorable to...
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