Parks v. State ex rel. Owens , 100 Ala. 634 ( 1892 )

STONE, C. J.

These four oases were by consent tried together in the Circuit Court, and, by like consent, were argued and submitted in this court as one case. The facts in each of the cases are substantially the same, and each and all of them are dependent on the same legal principles. They were informations in the nature of quo warramto, intended to test the correctness and legality of the declared result of the election of certain county officers of Pike county, who were voted for at the August election in 1892. They are proceedings under Ch. 14, Tit. 2, Part 3 of the Code of 1886, commencing with section 3170 of that compilation of statutes. The chief defense relied on is, that under our system, the remedy invoked in these cases is not open to the relators, and that for that reason the judgments should have been in favor of the defendants. This defense was raised by demurrer and by plea or answer to the petition. The Circuit Court ruled against its sufficiency, and granted relief to the relators. Erom that judgment the present appeal is prosecuted.

At the time this election was held—August, 1892—we had a statutory system in force which provided expressly for a contest of the election of each of the officers, which furnish the subject of the controversy shown in this record. It was very comprehensive in its terms, embracing “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;” and it provided that the contest might be inaugurated “by any qualified elector.” It enumerated the causes of such contest, under four specifications, as follows:

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.” A contest under this statutory provision was required to be instituted within a prescribed time, which had elapsed when these proceedings were instituted.

The statute remained as stated supra, until it was reenacted—somewhat modified in form and substance—by act approved February 10, 1893,—Sess. Acts 468. The later statute expressly repealed the former one, as to all the provisions wbicb affect tbe question presented by tbe record before us; buj; it expressed an additional ground of contest— “On account of tbe rejection, of legal votes.”

We bave, since 1852, bad another statutory system in force, by which tbe right of persons exercising official functions can in certain conditions, be tested, [t is an information in the nature of a quo warranto, and commences with section 3170 of tbe Code of 1886. ' Its provisions as applicable to tbe case before us, are that “When any person usurps, intrudes into, or unlawfully bolds or exercises any public office, civil or military, or any franchise within this State, or any office in a corporation created by tbe authority of this State,” an action may be maintained to redress the wrong. This mode of redress, and of ousting persons illegally in office bad long been in force, and received additional vitality and energy from tbe English statute of Anne. Many of tbe States bave enacted statutes regulating its use, so that it has gotten into very general use, as a means of getting rid of persons who intrude into, or unlawfully bold public offices. In many of tbe Stages, as in our own, they recognize tbe continued existence of this remedy, while at tbe same time, they, like ourselves, bave special statutes providing for a contest of elections. And tbe question has often been raised, whether such statutory contests, when provided for, take tbe ■ place of, and supplant tbe common law writ of quo warranto, or rather, information in the nature of quo warranto. Tbe general ruling on this question is that the statutory contest does not displace tbe older remedy by quo warranto, unless tbe statute so declares, or it is implied in its terms. That in tbe absence of such expression or implication, tbe statutory remedy is cumulative. In McCrary on Elections, § 345, tbe principle is thus expressed: “Tbe true doctrine seems to be that a special remedy given by statute is cumulative, and not exclusive of tbe ordinary jurisdiction of tbe courts, unless the manifest intention of tbe statute be to make such special remedy exclusive, and such intention must be manifested by affirmative words to that effect.” Mecbem, Pub. Officers, § 2í says: “In several of tbe States special tribunals bave been created for tbe trial of election contests, but where this is -not tbe case, tbe ordinary courts of law are to be resorted to. Where such a special tribunal has been created, individuals desiring to institute proceedings must, where such appears to bave been tbe intention, bave recourse to that tribunal alone, and can not, in general resort to tbe courts of law.” In Paine on Elections, § 860, is this language : “When tbe Statue creates a special tribunal and prescribes special proceedings for the trial of contested election cases, and the tribunal, to which jurisdiction is given is vested with full powers to adjudicate all questions involved in such cases, the courts will not take jurisdiction by quo ivarranto, at common law, even in cases of fraud on the part of the officers' of election, or candidates.” In High on Ex. Leg. Rem. 617 the doctrine is thus stated: “Where a specific mode is provided by statute for contesting elections, and a specific tribunal is created for that purpose, and the method of proceeding therein is fixed by law, resort must be had to the remedy thus provided, and proceedings by information in the nature of a quo warranto will not be entertained.” The quotations from the last two authors are supported by Com. v. Leach, 44 Penn. St., 332; Com. v. Garaigues, 28 Id., 9; 70 Amer. Dec. 103; Com. v. Baxter, 35 Id. 263; State v. Marlow, 15 Ohio St. 114; People v. Every, 38 Mich. 405.

The following authorities hold that the enactment of special provisions, or the creation of a special tribunal, one or both, does not, without more, supplant, or take away the right to controvert and try the validity of an election, under quo warranto proceedings.—Atty. Gen. ex rel v. Barstow, 4 Wisc., 567; State ex rel. v. Messmore, 14 Wisc., 115; People ex rel. v. Hall, 80 N. Y., 117; Kane v. People, ex rel., 4 Neb. 509; State ex rel. v. McKinnon, 8 Ore. 493; People ex rel. v. Holden, 28 Oal. 124; State ex rel. v. Frazier, 44 N. W. Rep. 471; People ex rel. v. Londoner, 22 Pac. Rep. 764; State ex rel. v. Boyd, 48 N. W., 739; Dudley v. Mayhew, 3 Comst. 9; 1 Dil. Corp. § 202; 2 Ib. § 891.

We do not consider it necessary to discuss, or criticise the somewhat varying phraseology employed in the foregoing citations. The case we are considering must be determined by the language of our statute and its proper interpretation.

As part and parcel of our statutory quo ivarranto system, it is provided, § 3177 of the Code of 1886, that “The validity of no election which may be contested under this Code can be tried under the provisions of this chapter.” This whole chapter, with all its provisions, was adopted and made part of the Code of 1852, commencing with § 2651 of that Code. Section 2654 of that compilation corresponds to section 3082 of the Code of 1867, § 3422 of the Code of 1876, and to § 3170 of the Code of 1886. Section 2664 of the Code of 18 32 was in the following language: “The validity of any election which may be contested under this Code can not be tried under the provisions of this chapter.” That language was carried without change into the Code of 1867, § 3092, and into the Code of 1876, § 3432. The slight change in the words of the section, as shown in the copy, first above given, is for the first time found in the Code of 1886, § 3177. That change in the words can not lead to a change of interpretation, for the phrase, the validity of any election can not be tried, is certainly the synonym and equivalent of that other phrase, the validity of no election can be tried.

Several cases of controverted elections have been before this court, while our statutory provisions governing the remedy of quo warranto as applicable to such cases have remained substantially unchanged. Some of those provisions we have copied above. The case of Ex parte Lambert, 52 Ala. 79; Ex parte Harris, Ib. 87; Moulton v. Reid, 54 Ala. 320, and Hudmon v. Slaughter, 70 Ala. 546 do not appear to shed any light on this question. In State ex rel. v. Tucker, 54 Ala. 205, possibly the question might have been raised and considered. It was not done, but relief was denied on other grounds. In Echols v. State ex rel. 56 Ala. 131, Clark v. Jack, 60 Ala. 271, Leigh v. State ex rel. 69 Ala. 261, and Savage v. Wolfe, Ib. 569, we held that the statutes had made no provision for a contest in those cases, and hence, no ruling was, or could be made affecting the question with which we are now dealing.

In State ex rel. v. Hamil, 97 Ala. 107, is found a remark not necessary to a decision of the case, which, if not an error, would at least tend to mislead. Under the facts of that case the common law writ of quo warranto would not lie. There was, however, a clear right to contest under the statute, and that supplied all that was necessary to make the argument complete. Having an adequate remedy by statutory contest, there was no authority to resort to mandamus.

One of the cases embraced in this proceeding—that of Brown v. Hillard, being a contention over the probate judgeship of Pike county—has been heretofore before us.—97 Ala. 92. That was a contest before the circuit judge under § 428 of the Code. The judge of the Circuit Court sustained the contest, and decided that Brown, the contestant, was entitled to the office. The case was then brought by appeal to this court, and we held that the statement of the grounds of contest made to the circuit judge, and on which he tried the case, failed to make a case within § 396 of the Code, and, hence, failed to make a case for which statutory contest would lie. We said: “It is a principle of law too long and well settled to be now the subject of contention, that the record, or quasi record, of a court or tribunal of special, limited jurisdiction, created by statute whose proceedings are required to be written, must affirmatively disclose every fact upon which, by the statute, the jurisdiction of the court or tribunal is made to depend, in order to sustain the jurisdiction and uphold the validity of the judgment rendered. ..... The present proceeding was before the circuit judge, created by statute into a new and special tribunal, with the limited power conferred upon it to enforce a new right conferred by the same statute. The grounds upon which this tribunal may exercise the power, and jurisdiction for which it was created are expressly prescribed, and expressly required, one or more of them, to be set forth in writing, in the statement required to be filed as the institution of the suit or proceeding. They are, therefore, jurisdictional. Without them the tribunal# does not legally exist. They must affimatively appear by’ the record, or else the proceeding is coram non judice and void.

Does the statement of contestant Brown contain an averment of either of these necessary jurisdictional facts ? A mere inspection of the paper would constrain us to hold that it does not. It is conceded by counsel that the second, third and fourth grounds prescribed by section 396 are not set forth or relied on. The first ground, as we have seen, is thus stated in the statute : “Malconduct, fraud or corruption on the part of any inspector, clerk, returning officer, or board of supervisors.” It would seem unnecessary to discuss the meaning of the words, ‘mal-conduct, fraud, or corruption,’ as they are here used. They are of such obvious signification as to preclude discussion. • • • • The statement in the present case given the most latitudinous construction, does not approximate a charge of malconduct, fraud or corruption on the part of either of the officers mentioned in the statute. • • • • The conduct complained of, though negligent, is entirely consistent with perfect honesty and good faith.”

In the foregoing case, we declared that the proceedings before the circuit judge were void for want of jurisdiction; and we ordered them to be quashed.

It is very clear that the case of Brown v. Hilliard was rested on the first subdivision of the grounds of contest specified in § 396 of the Code, and that it was decided on that ground alone. The argument made showing that the facts did not make a case for relief under that subdivision is unanswerable.

The issue which has given rise to the main controversy-before us, is the inquiry, what are the proper meaning and scope of § 3177 of the Code of 1886? We have copied that section, but for convenient reference we will repeat it: “The validity of no election which may be contested under this Code can be tried under the provisions of this chapter.” That chapter, No. 14, Title 2, Part 3, commencing with section 3167, is the chapter which defines the conditions, and prescribes the rules to be observed, when proceedings in quo warranto are resorted to for “usurpation of office, or franchise.” It expressly declares that its provisions cannot be invoked, or resorted to, to try or test the validity of any election, if the Code has made provision for contesting such election. Now, the Code § 396 had made express provision for contesting each of the elections which is involved in this controversy, and in four subdivisions had embodied the grounds of such contest. For either one of the wrongs or improprieties therein enumerated, the election might be contested, and if the charge was sustained, the result would or might be that the person declared elected would be ousted from office. The grounds stated in the statute are very comprehensive in their terms. The first embraces all “malconduct, fraud or corruption” of every person employed in an official or quasi official capacity in the conduct of the election, extending up to the time when the result is declared. The second is confined to the eligibility of the person declared elected, and the third, to the receipt of illegal votes. This was perhaps imperfect, in that it made no provision for cases in which legal voters were denied the privilege of casting their ballots. That omission has been supplied and the imperfection healed by the statute of February 10, 1893. The fourth subdivision relates alike to inside and outside interference. Its first clause makes bribery or offer to bribe a ground of contest, but the second clause is generic, and is quite comprehensive. It makes “any other misconduct calculated to prevent a fair, free and full exercise of the elective franchise,” a cause of contest.

"What is “the elective franchise” ? It is the right or privilege of a qualified elector or voter to cast his ballot freely in favor of the man of his choice, in an election authorized by law to be held.

We return to the question of the interpretation of section 3177 of the Code. Its language is very plain and very simple. If the Code makes provision for the contest of the election, then its validity cannot be tried by a proceeding in quo luarranto. Relators—appellees in this case—contend for a narrower interpretation. Their contention is that the section must be interpreted as if written, “The validity of no election which may be contested under this Code can be tried under the provisions of this chapter,” for wrong or irregularity committed, which this Code specifies as a ground of contest. In other words, if the contest provided for in the Code furnishes a remedy for the particular grievance complained of, then quo loarranfo cannot be resorted to; but if the wrong be not included in the specified grounds of contest, then quo warranto will lie. This they contend, is the extent of the inhibition. They contend further that the wrong and irregularity complained of in this case is not made a ground of contest in either of the subdivisions of section 396, and therefore they were and are entitled to the present remedy. Waiving the inquiry whether the wrongs set forth in this record are, or are not embraced in one of the subdivisions of section 396 as a ground of contest, is the language of §■ 3177 susceptible of the interpretation contended .for ? To contest means, to strive to win or hold, to controvert, litigate, oppose, call in question, challenge, dispute, to defend as a suit or other proceeding. Dictionaries. What right have we to say there is no contest, unless it has within it the elements of success ? And how can we assume that the legislature did not employ the word contest, or contested in its natural and ordinary sense? What is the subject of this sentence, and what is it the statute declares shall not have its validity tried under proceedings in quo warranto ? Every one must and will promptly answer, the election. Nothing else was being spoken of. Not every election, but only those which could be contested under the provisions of the Code.' These, having had secured to them what was conceived to be an ample and speedy remedy by statutory contest, it was intended they should not be clothed with the additional, optional remedy, which might leave the question of the rightful incumbency of the office in protracted doubt and uncertainty. Can not the right to every one of the offices'that are in controversy in the suit before us be contested under the Code ? Every one will answer, it may be. Then, on what principle can this case be taken without the influence of the inhibitory clause of the statute.? Again. The statute, in defining the grounds of contest, employs very comprehensive terms. They embrace almost every conceivable wrong that may be perpetrated in the holding of an election, even up to the declaration of the result. The legislature, doubtless, thought they had covered the entire field they intended to make grounds of contest. They had the clear right to define the grounds on which elections could be contested, and to make them broad or restricted; and they had the equal power and right to declare that the validity of no election should be contested or questioned, save on the grounds and for causes prescribed by them. Shall we arrogate to ourselves the right to say they did not mean what they said? We must, if we can, ascertain the sense and intention of the legislature in and through the words they employed, and we must not be led off by a seemingly hard case to give to the section an interpretation either larger or smaller than its words import. “Words of common use are to be understood in their natural, plain, ordinary and genuine signification as applied to the subject matter of the enactment.” Endlich Inter. of Stat. § 2. “When the language is not only plain, but admits of but one meaning, the task of interpretation can hardly be said to arise, [and those incidental rules which are mere aids, to be invoked when the meaning is clouded, are not to be regarded] • • It is not allowable, says Yattel, to interpret what has no need of interpretation. • • The legislature must be intended to mean what it has plainly expressed, and consequently there is no room for construction. • ■ But whilst it may be conceded that, where its provisions are ambiguous and the legislative intent is doubtful, the effect of several possible constructions may be looked at in order to determine the choice, it is very certain that when once the intention is plain, it is not the province of the court to scan its wisdom or its policy. Its duty is not to make the' law reasonable, but to expound it as it stands, according to the real sense of the words.”—Ib. § 4.

The first codification of the statutes of Alabama, known as the Code of 1852, went into operation January 17, 1853. We have heretofore given a copy of section 2664 of the Code, and have shown that it was continued in force, without any change whatever, until the adoption of the Code of 1886. We have also shown that the change wrought by the Code of 1886 effected no change whatever in the meaning of that section. In 1858 the first Code of the statutes’ of the State of Tennessee was adopted and went into effect, Meigs and Cooper being the codifiers. Section 3423 of that Code, found in a chapter devoted to proceedings in quo luarranto, is an exact copy of section 2664 of the Alabama Code of 1852, without change or transposition of any word, letter, or even punctuation point. To suppose this was accidental, would be to suppose almost a miracle. Theirs was manifestly copied from ours..

The case of State ex rel. v. Wright, 10 Heisk, 237, was a proceeding on information in the nature of quo roarranto. The commissioner of registration, the officer charged by their statute with such duty, had certified in his return that W. had received the largest number of votes, and was elected. The information was filed by one C. as relator, who claimed to be and was really elected sheriff, and the purpose was to have "W. ousted, and C. proclaimed sheriff. The case was one of great wrong and abuse on the part of the commissioner of registration. Their statute, like oirrs, had provided for a contest of the election for sheriff, and the question was made that the proceeding by information in the nature of a quo warranto could not be entertained. The court, quoting section 3423 of their Code—the same as our section 31(7—said, “A cursory reading of the particular section relied on would seem to give force and plausibility to this position.” The court then, by a process of reasoning not susceptible of easy comprehension, attempts to answer this interpretation of the statute. The writer of the opinion concludes what he has to say on this feature of the case in the following language: “I apprehend that the statute should be construed as if it read, ‘The validity of any election which may be contested under the Code, by the party who seelcs this remedy, can not be tried under the provisions of this chapter.’ If the relator in tliis case had resorted to 'the remedy by contest, his petition would have necessarily shown the fact that a majority of the votes actually given were cast for him. This was ah election, and he would have been very properly repelled by the answer, that being the elected candidate, and having a clear right to the office by the actual popular vote, he had not adopted the appropriate remedy to recover the office.”

We may well inquire, what authority had the writer of that opinion to amend a solemn act of the legislature, by inserting words which give it a totally different meaning? And, in reference to the second subject mentioned in the language quoted. Most contests of elections are based on the averment that the contestant received a majority, or plurality, as the case may be, of the legal votes cast, and that by fraud, or some other wrong he has been counted out, and the contestee improperly- proclaimed elected. When fraud or mistake in the count is the ground of contest, the statement of the contestant would be insufficient if it did not show that upon a fair count of the lawful votes cast he had received a plurality, and is, therefore, entitled to the office. His complaint is that by accident, or by a graver wrong, the plurality of the votes cast for him has failed to be computed, and by that means he has failed to receive the certificate of election to which he was entitled. This is the groundwork on which he bases his contest, and the most prominent point of his contention—the sine qua non of his claim—is, that a plurality of the lawful votes was cast for him. Can it be, that by thus showing that he had received a majority or plurality of the votes cast, he placed himself in the category or dilemma, in which he could be “properly repelled by the answer, that being the elected candidate, and having the clear right to the office by the actual popular vote, he had not adopted the appropriate remedy to recover the office?” This would be the equivalent of the water test, when witchcraft was punished as a crime. It is not uncharitable to conjecture that the hardship of this case exerted some unconscious influence in moulding the decision. The result was right, and possibly the court did not severely scrutinize the methods by which it was attained. Possibly the relator’s proper remedy in that case 'would have been a mandamus to compel the commissioner to file the proper report—the one first made out by him. At all events, we are not able to perceive on what principle their statutory contest was not open to him, and this was a complete answer to the information in the nature of quo warranto, as clearly declared by their statute.—§ 3423.

Ten years later—9 Lea, 644—the case of State ex rel v. Gossett, was tried and decided in the same court, in the same form of proceeding, information in the nature of quo luarranio, and over the controverted right to the office of sheriff. At that time, William F. Cooper, one of the authors of the Code of 1858, and one of the ablest and most pains-taking judges that ever sat on that bench, was a member of the court, and delivered the opinion in that case. The case turned on section 3423 of their Code, identical with section 3177 of ours. The chancellor had entertained the proceeding, and had awarded the office to the relator. In the Supreme Court the chancellor’s ruling was reversed, and the bill dismissed. Among other things, the court, speaking of the case of State ex rel. v. Wright. 10 Heisk. 237, said: “The judge who delivered the opinion of the court adopts the more obvious construction, the jurisdiction under section 889 [the section which provides for a statutory contest] is exclusive, but argues that a bill filed under section 3409, based upon the returns as made, does not dispute the validity of the election, and, is, therefore, not a contest of the election. It is in this view only a struggle over the prima facie case, which entitied the apparently successful party to the certificate of election, leaving the contest of the election to be made by a separate suit in the Circuit Court. The result would be one suit for the form and another for the substance, the latter being postponed until the protracted litigation of the former had terminated. The argument of the opinion does, moreover, assume that the court in determing the prima, facie right to the certificate of election, may go behind the certificate, and look at the original returns upon which the returning officer acted. The case did not, however, require a consideration of this point.

“The decision of the court was, therefore, that the commissioner, as the returning officer, had found that the returns showed that the relator was elected sheriff, and had made a certificate of the fact to the relator, and that his subsequent acts were simply void. It was not necessary to go behind his return and certificate. The court merely ascertained the true return, installed the person entitled under it, and removed a usurper, who had no legal certificate.

“The authorities are uniform that, except in a direct proceeding to try the title to the office, the correctness of the decision of the returning officer can not be called in question. McCrary Law of Elec., § 221; Cooley Const. Lim. 778. It is one thing to ascertain that decision, and another thing to impeach it. To go behind it is to contest the election, and such a contest in the case of a sheriff must be made under the Code, § 889;” corresponding to our section 396.

The foregoing extract, and, more fully, the entire opinion, if consulted, demonstrate that the case State ex rel v. Wright, 10 Heisk. 237, has been left without a semblance of authority to support it. See also Batman v. Mcgowan, 1 Metc. (Ky.) 533; Conner v. Conner, 8 Baxt. (Tenn,) 11; Hulseman v. Rems, 41 Penn. St. 396; O’Docherty v. Archer, 9 Tex. 295; State ex rel v. Marlow, 15 Ohio St. 114; Clarke v. Rogers, 81 Ky. Rep. 43; State ex rel v. Berry, 14 Ohio St. 315.

The judgment of the Circuit Court is reversed, and this court, proceeding to render the judgment the Circuit Court should have rendered, doth order and adjudge that the proceedings on information in the nature of quo warranto be declared null, and that the same be quashed.

Beversed and rendered.