Wade v. Oates , 112 Ala. 325 ( 1895 )

HEAD, J.

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This is a contest of an election of Mayor and Aldermen of the town of Headland, Ala.

The first ground of contest specified in the complaint was insufficient. It should have stated, as provided by sub-division 3 of section 3 of the ‘ ‘Act to provide for and regulate contests of elections to offices, State and county, herein named, ” (Acts, 1892-93, 468), that the alleged illegal votes given to contestees, if taken from them, would reduce the number of their legal votes to or below the number of legal votes given to contestants. It was not enough to say the contestants would have received a ‘'■majority.” That majority may, also, have consisted of illegal votes, in whole or in part. But, when we come to the merits of the case, this seems to be a useless feature injected into the complaint, for what purpose we do not know, since, though the court on demurrer sustained the ground, on the point mentioned, there -was no pretense on the trial, on the part of contestants, that any illegal votes were cast for contestees except the general contention that all the votes cast at the election were illegal. The allegations, therefore, serve no purpose but to unnecessarily incumber the record.

The contestees undertook to set up by pleas, that there were no legal votes cast at the election, at all, for any one ; and in consequence, contestants were not and could not have been elected. This is predicated upon the allegation that the mayor did not provide the tickets to be used as ballots at the election, as required by the election law, (Acts, 1892-93,p. 837, §§14eiseq., §47) ; and also that none of the voters had been registered. The objections do not go to the validity of the election, except as its invalidity results from the fact that every vote cast for any one was illegal. The contest statute, under which this proceeding is instituted, prescribes how the inquiry touching the casting of illegal votes, shall be inaugurated and tried. Section 2 of that statute (Acts supra,- p. 468) provides that “no testimony must be received of any illegal votes, or the rejection of any legal votes, in any contested election, unless the party complaining thereof has given to the adverse party notice in writing of the number of illegal votes, and by whom given, and for whom given, and at what X>recinct or voting place cast, or the number of legal votes rejected, and by whom offered, and at what precinct or voting place, which he expects to prove on the trial. Such notice must be served personally, or left at the residence, or usual place of business of the . adverse party, at least ten days before the taking of the testimony in reference to such votes.” Unless the question is raised in accordance with these provisions, the court will not, on a contest under the statute, enter upon any Investigation of the character of the votes cast or rejected — whether they were legal or illegal. In this case, there was no pretense of a compliance with these provisions. In order to get the benefit of the defense that illegal votes were cast, or legal votes rejected, the contestee is not required to file a special plea setting up the facts. He may give the required notice and make the necessary proof, under a general denial of the complaint. Indeed, no special pleadings of the contestees were necessary or contemplated by the statute, and they served no useful purpose in this proceeding. It was the purpose of the legislature to provide a simple and expeditious method of determining who were really elected to' the public offices when such questions are made the subject of contests before the courts, and we will not permit the efficiency of the remedy to be impaired by unnecessary and refined technical pleading, which tends to obscure and thwart the merits of the controversy, and which are involved in the general denial. The complaint must set forth the jurisdictional facts. pi’escribed by the statute, in order to confer jurisdiction of the subject matter upon the court. This done, a general denial by the contestee is all the further pleading that is necessary. The objections made to the election, in question, by the other special pleas all relate to mere irregularities — disregard of directory provisions — not affecting the number of votes received by the respective parties. We will, therefore, not further notice the special pleas, replications or rejoinders.

The questions then are, upon the evidence : (1) Who received the greater number of votes ? (2) Is the charge of mal-conduct, fraud or corruption sustained?

1. The evidence abundantly sustained the finding of the trial judge that the contestants were elected.

2. The town charter provides for elections of mayor and aldermen, annually, and declares that “all boards of managers of said corporation election shall be designated by the mayor and board of aldermen.” Further, that “the mayor and aldermen shall declare the result of elections and declare who are elected officers ; and in case of a tie, shall determine who shall be mayor and aldermen. * * * * * That any election held under this act may be contested in the same manner, as is or may be provided by the laws of the State for the contests of the election of judge of probate, and that so far' as-practicable apply to the contests of all elections held under this act.”

Under these provisions, the mayor and aldermen, in office, at the time of the election, come within the designation, “board of supervisors,” found in sub-division 1 of section 1 of the contest act, whose “mal-conduct, fraud, or corruption” gives cause of contest. In this instance, contestee, Wade, was mayor, and contestees, King and Grice, with two others, were aldermen; and they were candidates for re-election. As the draughtsman of the charter, we suppose, thought no such occurrence as a mayor or alderman becoming a candidate for re-election would ever happen, no provision was made for such a contingency; so the contestees being in, they sat upon their own cause, declared themselves elected, and continued in. The election had been held by a board of managers or inspectors, in part appointed by the mayor and aldermen, and in part by substitutes for appointees. Though the provisions of the charter, as to the machinery for holding such elections, are meagre

Vol. 112. and indefinite, the purpose is disclosed that they shall be held by inspectors appointed by the mayor and aider-men, or substitutes taking their places, according to the rules and regulations, as far as applicable, of the general election laws of the State governing general elections, intending to confer upon such inspectors substantially the same duties as conferred by such general laws, and upon the mayor and aldermen, substantially, the duties of boards of supervisors, under the general laws. The inspectors who held this election, did so in the manner prescribed by the general law as contained in the Code of 1886, omitting the new provisions of the election law of 1893. They opened the polls at'thfe proper time, received the ballots, kept the usual poll lists, closed the polls properly, counted the votes, keeping tally sheets, ascertained the number of votes received by each person voted for, and returned a box containing the ballots and tally sheets to the mayor and aldermen. Whether the tally sheets were certified or signed, in any way, by the inspectors, does not appear. Though there was nothing more important in the cause than these tally sheets, they seem to have commanded only an incidental mention in connection with the action of contestees, and that was,that one witness saw them at the count made by the mayor and aldermen. The testimony of inspectors proved that correct tally sheets were kept. Several days after the election, the mayor and aldermen, including contestees, to whom the box was delivered, proceeded to recount the votes, ignoring, so far as appears, the tally sheets. Their count of the ballots reversed the result of the count made by the inspectors. For instance, the inspectors (and their tally sheets so showed) gave Oates, for mayor, 52 votes and Wade 40, whereas, the count made by Wade and others, gave Wade 52 and Oates 40. The evidence is satisfactory that tickets had been changed after the box left the inspectors, producing this new result. There was no direct evidence to show who did it. The contestees and others who were shown to have had any connection with the box, testified to their entire innocence in the premises . It would be impossible to form a safe and reliable judgment, upon the evidence reproduced in writing before us, as to who is responsible for the changes made in the ballots, and our conclusion is that as the circuit judge had the witnesses before him and the consequent increased advantages of weighing properly their testimony, we will not disturb his finding.

Affirmed.