Clarke & Daviney v. Jack

STONE, J. We are asked to pronounce unconstitutional the act “ To authorize the people of Eranklin county to vote on the question of removing the county-seat of said county, and to permanently locate the same,” approved January 24, 1877. — Pamph. Acts, 185. The particular grounds urged in favor of such ruling are — first, that the statute violates section 23 of article TV of the constitution, which ordains, “No special or local law shall be enacted, for the benefit of individuals or corporations, in cases which are or can be provided for by a general law, or where the relief sought can be given by any court of this State.” We do not consider this a special or local law, for the benefit of an individual or corporation, in the sense in which the latter term is employed in the constitution. It affects the whole county, and relates to its political organization.—Eitel v. State, 33 Ind. 201; Askew v. Hale County, December term, 1875; Chambers v. Lee County, December term, 1876. But we think this question is necessarily one of legislative discretion, and, on questions such as this, not one of judicial determination. Many facts and considerations may enter into the inquiry whether the particular want or object “can be provided for by a general law.” A strong local want or de» sire may exist, clamoring for an enactment, which the legislature could make general, but which the general public, not only do not desire to have operative upon them, but would stoutly resist, if proposed. To hold that the question whether the object of a proposed local or special statute can be provided for by a general law, is, at all times, one of judicial inquiry, would lead to most' deplorable doubt and uncertainty, alike in the enactment and administration of the law. There is scarcely a conceivable subject of local or special grievance, for the redress of which an ingenious advocate or disputant could not find or frame a general enactment. 2. In the second place, it is urged against the constitutionality of this enactment, that notice of the intention to apply therefor was not published in the locality where the matter or things to be affected were situated, for twenty days prior to the introduction of the bill in the general assembly. As we understand this objection, it is not founded [279] on any allegation that the journal shows affirmatively such notice was not given. It rests on its failure to affirm that the notice was given. In Harrison v. Gordy, at the last term, we decided this identical question, adversely to the argument here made. We then said, “We think it is our duty to indulge the intendment, that the legislature conformed to every constitutional requirement, which the journal of its proceedings does not affirmatively show was disregarded.” See Cooley’s Const. Lim. 139. This would be decisive of the question we are considering, even if it were presented in the present cause. But, under the rule declared above, this is not a local or special law which requires publication to justify its enactment.—See, also, Cooley’s Const. Lim. 128; Marks v. Trustees, 37 Ind. 163; State v. County of Boone, 50 Mo. 317; State v. McCann, 21 Ohio St. 211. 3. A third objection to the enactment is, that the legislature did not finish its work, but referred certain questions to a vote of the people. Nothing which pertained to the enactment of the law was referred to the people of the county. The law was complete in all its parts, before any vote was taken. There was no election ordered, or held, to determine whether the action of the legislature should become a law. The question was, whether the legal voters of Franklin county elected to have a change of the site of their courthouse. There is nothing in this objection. — Cooley’s Const. Lim. 119, note 4, and numerous authorities. 4. Clark and Daviney, appellants, filed their petition to the probate judge of Franklin county, seeking to contest the election, on several grounds therein set forth. Had the probate judge authority and jurisdiction to hear and determine the questions raised by the petition ? In Echols v. State, ex rel., at December term, 1876, we, on satisfactory reasoning and authorities, determined that the right to contest an election is purely statutory; and that when the statute does not confer the right, it does not exist. We declared, however, that there were common-law modes of determining contested elections; and when the statutes did not inhibit a resort to such common-law modes, they might be appealed to, in cases for which no statutory contest was provided. Is there any statute which Authorizes the present contest? There is nothing in the act of January 24, 1877, under which this election was held, which makes express provision for such a contest. It is contended, however, that certain clauses of this statute bring this election within the influence of the general election law; and inasmuch as the general election law provides a mode of contesting elections held under it, this elec [280] tion may be contested under those provisions. The clauses relied on are as follows : “All persons entitled to vote for representatives in the general assembly of Alabama, shall be entitled to vote at said election.” . . “ The said election shall be conducted under the same laws, and be governed by the same rules, except as herein directed, which govern general elections in this State.” “ That the returning officers, and inspectors of said election at the several precincts, shall hold, make returns, and do all things required by the general election laws of this State; and the supervisors of the said county shall proceed, as in case of a general election, to carefully count and compare the votes as returned from the several election precincts; and, when the votes are counted and compared, the sheriff shall make publication of the vote thus ascertained.” The provisions of the general election law which relate to contested elections, are embraced in the six articles of chapter 4, title 6, part 1, from section 302 to section 341, Code of 1876. It will be seen that they relate only to “ the election of persons declared elected to any office,” &c. Section 325 directs, that “a copy of such statement, with the day of trial indorsed thereon, must be served on the person whose election is contested, or left at his usual place of residence,” &o. Not one word in the whole chapter which relates to any elections, save those of persons to office. "We hold, that there is no law providing for a contest of an election such as this, and the probate judge of Eranklin county had no jurisdiction whatever of the cause. 5. A contest of an election is, in its nature, judicial. When an inferior court or tribunal assumes jurisdiction of a subject-matter, and pronounces judgment, in a matter over which it has no jurisdiction, and the law provides no appeal from such judgment, the common-law writ of certiorari is the appropriate remedy, to correct his errors, and vacate and quash the proceedings. The statute provides no appeal from a judgment, such as the judge of probate rendered in this cause, and certiorari was the proper remedy. — 1 Brick. Dig. 333, §§ 2, 4, 5. The proceedings in the Probate Court were prosecuted, on a notice to, and defense by the persons who sued out the certiorari in this cause; they were commissioners and officers charged with important duties in reference to the new county-site, should one be elected; and we hold that appellants can not be heard to controvert their right to sue out certiorari from the Circuit Court. To hold otherwise, would be to declare that, although a serious judicial error was committed by the judge of probate, yet no one [281] has such special interest in the subject-matter, as that he can move to have the error corrected. We have been much aided by the able argument and opinion of the circuit judge in this cause, and, on all the questions considered by us, we have adopted his conclusions. There is no error in the record, and the judgment of the Circuit Court is affirmed.