State ex rel. Harris v. Elliott , 117 Ala. 150 ( 1897 )

HEAD, J.

By the charter of the City of Gadsden (Acts, 1882-83, p. 281) a mayor is required to be elected by the people. It is provided that no person shall hold the office of mayor of the city who has not resided therein one year preceding the election. Sec. 14. A prescribed certificate* of election is required to be givén the mayor-elect which, by the terms of the act, entitles him to possession of his office immediately upon the expiration of the term of his predecessor, as fixed by law; subject, however, to the contestation of his right as, at the time of the adoption of the charter was, or thereafter might be, provided by law for contesting elections of judges of probate in this State. Sec. 11. And by section 16, it is provided, “That any election, under this act, may be contested in the same manner as is now, or may hereafter be, provided by the laws- of this State for the contest of elections of judge of probate, as far as the same will apply to contests under this act. When this charter was passed, and e'ver since, there was, and has been, a statutory system for contesting elections of judges of probate and other specified officers before special judicial tribunals created for the purpose, and according to prescribed forms or methods of procedure. The proceedings when had are judicial and finally determine the rights of the contestant and contestee in respect of their claims to the office. Eligibility of the person declared elected is made a ground or cause of contest, under this system. The respondent, James M. Elliott, Jr., was declared elected mayor of Gadsden and inducted into the office, and is now discharging the duties thereof.

Our Code, by a system separate from that- for the contest of elections just referred to, preserves the substantial features of the pre-existing remedy by information in the nature of quo warranto, adapting to it prescribed forms of procedure. — Code of 1886, § 3167, et seq.; Code of 1896, § 3417, d seq.

By section 3177 (Code of 1896, § 3431), a part of that system, it is provided that ‘ ‘The validity of no election which may be contested under this Code can be tried under the provisions of this chapter.”

Elliott’s election was not contested, but the relator, in this case, now proceeds, by the information in the nature of quo warranto, seeltingto oust him on the ground that lie was ineligible by reason of non-residence in the city for a year next preceding his election ; and the sole question presented is whether or not the remedy by contest, as in cases of probate judges, given by the charter, excludes the present remedy of quo warranto.

It seems to be well recognized that the general rule, established by the weight of authority is, that a special remedy given- by the statute, for the contest of an election, is cumulative, and not exclusive of the ordinary jurisdiction of the courts unless the manifest intention of the statute be to make such special remedy exclusive ; and such intention must be manifested by affirmative words to that effect. Judge Dillon says : “The principie is, that the jurisdiction of the court remains, Unless it appears with unequivocal certainty that the legislature intended to take it away.” — 2 Dill. Mun. Corp., § 141. In Parks v. State, 100 Ala. 634 (647 et. seq.) Chief Justice Stone stated that “the general ruling on this question is that the statutory contest does not displace the older remedy by quo warranto, unless the statute so declares, or it is implied in its terms. That in the absence of such expression or implication, the statutory remedy is cumulative.” And he collated and quoted from authorities on the question pro and con. The great weight of these authorities sustains the principle stated. The .text writers, like the adjudged cases, differ in their statements of the law upon the question. Thus Dillon on Mun. Corp., section 141, and McCrary on Elections, section 345, broadly declare the rule that the statutory contest and remedy by quo warranto are cumulative remedies, unless the statute makes the one exclusive of the other, following the rule declared by the New York, Wisconsin, Nebraska, Oregon, California and Colorado courts ; while Paine on Elections, section 860, Mechem Pub. Off. section 2, and High on Ex. Leg. Rem., 617, declare the opposite, following the rule of the Pennsylvania and Ohio courts. The cases of the first stated class combat the cases of Pennsylvania and Ohio, and are fully argued and considered. We feel constrained to adopt the view expressed by Chief Justice Stone, in Parks’ case supra, and hold, upon the great weight of authority, that, in the absence of statute to the contrary, the remedies are cumulative. The cases, as we said, are collected in the Parks case, but the convenience of reference we set them out here : Com. v. Leech, 44 Penn. St. 332; Com. v. Garrigues, 28 Id. 9; s. c. 70 Am. Dec. 103; Com. v. Baxter, 35 Pa. St. 263; State v. Marlow, 15 Ohio St. 114; People v. Every, 38 Mich. 405; Atty. Gen. ex rel. v. Barstow, 4 Wis. 567; State ex rel. v. Meesmore, 14 Wis. 115; People ex rel. v. Hall, 80 N. Y. 117; Kane v. People ex rel., 4 Neb. 509; State ex rel. v. McKinnon, 8 Oregon 493; People ex rel. v. Holden, 28 Cal. 124; State ex rel. v. Frazier, 44 N. W. Rep. (Neb.) 471; People ex rel. v. Londoner, 22 Pac. Rep. (Col.) 764; State ex rel. v. Boyd, 48 N. W. Rep. (Neb.) 739; Dudley v. Mayhew, 3 Comst. (N. Y.) 9.

Upon due consideration, we reach the conclusion that the right to contest the election of mayor of Gadsden was not conferred by the Code. It was conferred alone by the special charter of the city. It is not, therefore, brought within the provision of section 3177 of the Code. It is true, the charter by reference to the laws of the State for the contest of elections of judges of probate adopts those laws, as defining the manner in which the right to contest the election of mayor shall be exercised, but that relates only to the grounds of contest and methods of procedure provided by those laws, and not to the right of contest itself, which is alone conferred by the charter. It would be an undue extension of section 3177 to hold that it referred to contests provided for by special acts creating charters of towns or cities.

The quo warranto proceeding now being pursued, being a remedy independent of statutory contests of elections, except where said section 3177 of the Code makes.the latter exclusive, and as that section does not apply to the present case, the complaint, as amended, was properly filed. The judgment sustaining demurrers to the petition as amended, and dismissing the petition, is reversed and a judgment here rendered overruling said demurrers and remanding the cause.

Reversed, rendered and remanded.