Davidson v. State ex rel. Woodruff , 68 Ala. 356 ( 1880 )

STONE, J.

The provisions in tbe city charter of Selma, providing for the contest of municipal elections, are very meagre.—See Acts 1874-5, pp. 362-3. Section 16 provides, that such contest shall be heard before the judge of the Circuit Court of Dallas county, either in vacation or term time. Section 18 declares, “that the party contesting shall file his application, and give notice of such contest to the judge of said Circuit Court, and the person or persons whose election is so contested, within fifteen days next succeeding said election.” Section 19 provides the manner of taking testimony, and section 20 is as follows : “After the testimony on both sides is completed, the judge trying the cause may examine the poll list and ballots, and pronounce judgment in the case according to the facts.” It will be observed, that these sections make no provision for the deposit of the papers, after the trial is had, or for making any. final record of the suit. In analogy to other proceedings, we think it eminently proper such papers should be deposited with the clerk for safe keeping ; but they do not become.records, of which the clerk can certify, and by certifying, authenticate a copy. They are deposited with him simply for safe custody. A certified copy of them would not have been evidence.

In 1 Greenl. Ev. § 501 it is said: “As to the proofs of records, this is done either by the production of the records, without more, or by a copy.” In 2 Phil. Ev.—Cow. & Hill’s and Edwards’ Notes, 343,—the principle is thus stated: “Where, indeed, the existence of the record is the very point in issue, as upon an issue joined on the plea of nul tiel record, and the record belongs to the same court wherein issue is joined, the record itself must be actually produced.” It is said in this case, however, that the record, or roll as it may be called, was not offered in the same court. These precise questions were urged when this case was before us at a former term—63 Ala. 432—and we then held the evidence was properly admitted, and that the judgment pronounced by the circuit judge on the trial of the contested election established the right of the party to whom the office was adjudged. We have perceived no ground for changing our opinion, and we will offer no argument in support of it. On the admissibility of'the evidence offered, see Burk v. Tregg, 2 Wash. (Va.) 276 (215); Anderson v. Dudley, 5 Call. 529; Green v. Ovington, 16 Johns. 55; Lansing v. Russell, 3 Barb. Ch. 325; Patton v. Miller, 13 Seg. & R. 254; Eisenhart v. Slaymaker, 14 Ib. 153; Adams v. Betz, 1 Watts, 425; The King v. Hopper, 3 Price, 495.

It is objected, that "Woodruff bad not taken a proper oath <of office, when the judgment was pronounced in this cause. Article 15 of the constitution of 1875 prescribes the oath which “all members of the General Assembly, and all officers, executive and j udicial,” must take “before they enter upon the execution of the duties of their respective offices.” Section 4160 of the Code of 1876 makes it a misdemeanor for any officer required by law to take an oath of office, to enter upon the duties of his office without first taking such oath. Section 162 provides: “The mayor and aldermen of the various cities in this State shall take the oath of office prescribed in article fifteen of the constitution of the State, and none other ; and upon taking the same, are absolved from any other charter oath previously taken by them.” This statute was enacted, March 4, 1876. In the charter of the City of Selma, there is no clause prescribing when the oath of office shall be taken by the mayor, or where filed. The charter is silent on the subject of such oath. We find no law, except that hereafter referred to, which prescribes when the mayor shall take the oath of office, other than the constitution and See. 4160 supra,, which latter declares it to be a misdemeanor to enter upon the duties of office, without first taking such- oath. The present proceedings were instituted under chapter 5,Title % Part 3 of the Code, commencing with section 3422- Section 3431 declares: “If the judgment is rendered upon the right of the person so alleged to be entitled, and the same is in favor of such person, he is entitled, after taking the oath of office and executing such official bond as may be required, to take upon himself the execution of the office.” It is sufficient, if the oath be taken after final judgment in such a proceeding as this, and hence, whether Woodruff had taken the proper oath, or indeed any oath before final judgment in the Circuit Court in this cause, was wholly immaterial. It could only become material and imperative, when he entered upon the duties of his office. There is no error in the record.

Affirmed