Phillips v. Bynum , 145 Ala. 549 ( 1906 )

SIMPSON, J.

The first point to decide, in order to reach a solution of the problems in the case, is, what law applies? On- February 28, 1901, a local act was passed establishing a stock law in Blount county. — Loc. Acts 1900-1, p. 1800. That act provided for an election by the qualified voters of the entire county to ascertain whether they desired a stock law. That act provided, also, that in any precinct in that county, wherein a majority of the voters cast their votes for the stock law, a stock law shall be established, if within six months a lawful fence shall be 'erected around said precinct. It also provides for a similar election, ■ at any time in the future, with similar results, on application by 1,200. voters. Under that act the only election provided for -was an election by the voters of the entire county, and the inhabitants of a precinct could secure a stock law only by having a county election, at which a majority of the voters in the precinct should vote for it.’ The general act of September 29, 1903 (Acts 1903, p. 431), provides for an election in any precinct on petition by a majority of the freeholders. It is provided in this act that it “shall not be construed as repealing any local law heretofore enacted.” But this act shows a clear intention to make it applicable to precincts which have a stock law existing under any previous act, so as to give the vote the effect of abolishing the existing stock district, as section 6 (page 433) provides that “if such election is held in any precinct in which stock law already exists, and a majority of the votes cast be ‘Stock law, No/ the result of such election shall not take effect, until the lapse of six months after such election.” The act also provides that “in order to- procure an election to ‘repeal existing stock law’ the petition must not only be signed by a majority of the landowners, * * * but it must also be verified by affidavit of two or more showing that petitioners are landowners and that their lands do not lie within an incorporated city or town.”

It is evident that there is a field of operation for both acts in the game county. An election could be held throughout the county of Blount under the local act, and an election' could he held in any precinct of the county afterwards under the general act; but, in order to hold an election which would have the effect of repealing the previous adoption of the stock law in any precinct, the petition would have to he signed by a majority of the landholders and verified. It is clear that the election-was not held under the local law. The record does not show whether "any stock law was in operation under the local law at the time the election was ,held, nor are copies of the petition and other proceedings under which the election was held given; but it is distinctly stated that the election was held for a part of a precinct and the voters in the other parts of the precinct were denied the right to vote, and that the stock law so attempted to be voted on was to operate in only a portion of said precinct. The precinct is the unit fixed by the act, and an election held for any subdivision of the precinct is without authority of law. In the case now before the court we bold that, no sucb election as is provided by law being shown, tbe court was without jurisdiction to entertain a contest. Tbe motion to dismiss tbe procedings for contest should have been granted.

Tbe judgment of tbe court is reversed, and a judgment will be here rendered dismissing tbe petition for contest. Reversed and rendered.

Tyson, Dowell and Anderson, JJ., concur.'