State ex rel. Blish v. Thomas

MAYFIELD, J.

-This is a proceeding in the nature of quo warranto. It was instituted under section 5453 of the Code, to oust or remove appellees, on the ground that they were unlawfully holding and usurping the offices of mayor and aldermen of the town of Citronelle.

The only matter alleged in the petition as a fact to support the conclusion that appellees were usurpers of the offices which they were filling was that a clerk and an inspector, who officiated as such in the election at which appellees were declared to be so elected to snch offices, were not qualified electors, and were therefore incompetent to act as clerk and inspector at such election.

A demurrer was interposed and sustained to this complaint, and from the judgment sustaining the demurrer the relator prosecutes this • appeal. We are of the opinion that the trial court properly sustained the demurrer. The statute in question was not intended to authorize the revision or correction of such errors as the appointment of improper clerks and inspectors of elections.

It is not necessary to decide whether such clerk and inspector of the election could be ousted, because the petition does not seek to oust them, but seeks to oust those officers who were declared to be elected at the election in which such clerk and inspector officiated, on the ground of the incompetency of the clerk and inspector of the election, and not on the ground of the incompetency of the appellees declared to be elected.

It is likewise unnecessary to decide whether or not the incompetency of the clerk and the inspector would invalidate the election, which was otherwise valid, or whether the question could or would be properly raised on a contest of the election. If the question cannot be raised on a contest, it would not, for this reason, authorize a quo warranto proceeding such as is instituted in this case. On the other hand, the right of contest and that of quo warranto may both exist at the same time and on the same ground, such as the ineligibility, to hold the office, of the person declared to be elected; but we have never heard of quo warranto being instituted or prosecuted on the ground that some person officiating in the election was disqualified or incompetent to so act. That question cannot be inquired into, in a proceeding to oust the person declared to be elected. That is res inter alios acta. If the election at which appellees were elected was authorized by law, and was ordered by those authorized by law to order it, the mere fact that one of the clerics and one of the inspectors were ineligible or incompetent to act is not ground for quo warranto against any officer declared to be elected at such election.

There is nothing in this record to show that the incompetency of the cleric and the inspector affected the result of the election; and without this it would be no ground for contests — Henry’s Case, 144 Ala. 633, 39 South. 507, 1 L. R. A. (N. S.) 656, 6 Ann. Cas. A65; Mizell’s Case, 173 Ala. 437, 55 South. 884; Parks v. State, 100 Ala. 634, 3 South. 756.

We do not thinlc Misc.l’s Case is an authority to show error in the ruling of the trial court, but, on the other hand, we think it supports the ruling.

Finding no error, the judgment of the lower court will be affirmed.

Affirmed.

All the Justices concur, except Dowdell, C. J., not sitting.