Goodwyn v. Sherer , 145 Ala. 501 ( 1906 )

DENSON, J.

This is a proceeding by mandamus to comped the respondent, who is judge of probate of Fayette county, to issue certificates in favor of relators, J. D. Sheier and B. Henry, for mileage a.nd twO' days’ attendance as county commissioners of said county at the regular February term, 1905, of the commissioners’ court of said county. It is clearly made to appear by the answer of the respondent to the alernative writ that two other persons, W. II. Brown and W, M, Wright, were elected at the general election held in said county in 1904 to the identical offices claimed by the relators, and that said. Brown and Wright were duly commissioned by the Governor as county commissioners of said county for the first and third districts, respectively; that said Brown and Wright- appeared at the regular term of the commissioners’ court field on the (second Monday in February, 1905, and presented to respondent their commissions as such commissioners for the first and third districts of said county, demanding that they be allowed to transact the business and perform the dutes of commissioners at said term ■ of the court; and that they did perform the duties during said term. It- is also shown by the answer that the relators did not perform the services as commissioners at said February term.

Thus we have a case of rival parties claiming title to office, and the answer makes it appear that the proceeding by the relators is an attempt on their part to test the right to office between themselves' and the rival claimants by a mandamus proceeding It is manifest that the respondent, before he could have properly issued the cei*tificate to relators, would of necessity have: been compelled to pass upon the validity or not of their title to the office claimed by them, and this, too, in the absence of Brown and Wright as parties to the proceeding. It does' not appear from the pleadings that the election and commissions of Brown and Wright are apparently colorable and void. But it appears that Brown and Wright held commissions to the office and were also de facto- commissioners. In such state of the case the courts will uot interfere by mandamus, but will put the relators in the first instance to an information in the nature of a quo warranto.- — State ex rel. Mead v. Dunn, Minor, 46, 12 Am. Dec. 25 ; Ex parte Harris, 52 Ala. 87, 23 Am. Rep. 559 ; Har-mon v. Hamil, 97 Ala. 107, 11 South. 892 ; Ex parte Du Bose, 54 Ala. 278 ; Taylor v. Kolb, 100 Ala. 603, 13 South. 779 ; Anderson v. Colson, 1 Neb. 172 ; State ex rel. Vail v. Draper, 48 Mo. 213: Rex v. Banks, 3 Burr. R. 1454. Setting up the matter in answer referred to as respondent’s reason for not issuing the certificates did ml pur the respondent in (he attitude of seeking to try the title ro the office by a mandamus proceeding, as was assumed by the demurrer to the answer. Its legitimate effect was to show that the relators were in that attitude. It was legitimate defensive matter, the demurrer admitted it was true; and the court- erred in sustaining the demurrer.

There is another point in the case which was not raised in the court below, but which on account of the nature of the proceeding, we will mention here. The petition presents district rights of different persons which cannot- be joined in the same proceeding. Sherer is not interested in Henry’s claim for mileage and per diem — in his cause of action ; nor is Henry interested in Sherer’s.' Ffir this reason the court might well have dismissed the petition, and probably should have done so-, notwithstanding the point was not made by the parties. Each party must have a clear legal right, with respect of the entire cause of action presented, or mandamus cannot be. propo-ly awarded. — High on Ex. Rem. (2d Ed.) § 540 ; Heckart v. Roberts, 9 Md. 41 ; Hoxie v. County Com'rs. 25 Me. 333 ; The King v. City of Chester, 5 Modern Rep. 11 ; Rex v. Mayor, 11 Mod. 382.

Without-deciding the question as to repeal or not of the local statute involved in this controversy by the en-ac-l merit of the general election law, we cite the cases of Maxwell v. State, 89 Ala. 150, 7 South. 824 ; State ex rel. Tyson v. Houghton, (142) Ala. 90, 38 South. 761.

The- judgment of five circuit court is reversed, and the cau^e remanded.

Reversed and remanded.

Haralson, Dowdell, and Anderson, JJ. concur.