Savage v. Wolfe

STONE, J. The statute, which may be styled the local option law for Calhoun and other counties, approved, March 19, 1875 — Pampli. Acts, 276 — contains no provision for contesting elections held under it, in the form usually known as contesting* elections. If there be. any method by which alleged illegal voting, false count, etc., in such elections can be re-examined, it is not by statutory contest. — Echols v. The State, ex rel. Dunbar 56 Ala. 131. If the proceedings be so connected as to give to the probate judge jurisdiction to order an election and to appoint managers to conduct it, then the election may be advertised and held ; and if the result of the voting be properly certified and returned to the probate judge, then, if a majority of the electors voting at such election voted in favor of prohibition, and the returns show such to be the fact, it becomes the duty of the probate judge “ to make an order on the minutes of said court prohibiting the sale or giving away of vinous or [571] spirituous liquors within the limits mentioned in said petition.”' If the certified result shows a majority against prohibition,, then the application must be dismissed at the cost of the applicant. If there be irregularities not apparent on the face of the proceedings or return, statutory contest is n.ot the mode of raising such questions. The qualifications of the electors, and the general rules for conducting the election, are the same as those which obtain in the general elections, and the managers should conform to the regulations governing general elections. The authority, however, for holding elections, such as we are considering, is purely statutory, and outside of the general jurisdiction of any court. To set such proceedings in motion, there must be presented to the judge of probate of the proper county the sworn petition of some resident freeholder of the limits, within which prohibition is sought to be established. The petition must contain every material averment specified in the first section of the act, including the averment that the petitioner is a freeholder residing within the proposed limits, and that in the opinion of the petitioner the public good will be promoted by a prohibition of the sale or giving aw'ay of vinous or spirituous liquors within such limits. Until such petition is filed, containing proper averments, the judge of probate is-without jurisdiction to order an election. After prohibition has been thus established, a second election may be applied for and ordered, at the instance and on the petition “ of any citizen being a freeholder within such limits, [who] desires to have the order revoked.” In such case tins-becomes a jurisdictional averment, and takes the place of the averment in the first petition, “that in the opinion of the petitioner the public good will be promoted by a prohibition,”' etc. In all other respects the second petition must conform to-what is required in the first. But there is a limitation on this-right to make this second application. It can only be “after the expiration of twelve months after the prior election.” Such is the express language of the statute. The petition for revocation in this case was sworn to and filed, January 10th, 1881. It shows on its face that the first election which resulted in prohibition, was held, January 19th, 1880 ;; nine days less than twelve months before the second petition was filed. . This appears on the face of the petition, and is fatal to it. It failed in this important jurisdictional averment, and failed to put this statutory jurisdiction of the judge of probate into exercise. The whole proceeding, therefore, was co-ram nonjudice and void. — Tyson v. Brown, 64 Ala. 244. What is the effect of the principles stated above ? The petition or remonstrance filed by Savage, while ineffectual as a statutory contest, contains this averment: “ 6th. The order au [572] thorizing said election was granted before the time allowed by law.” This is true, and should have been treated as an opposition to the entry by the probate judge of an order of revocation. He should have quashed the proceedings. And, proceeding to render the judgment he should have rendered, it is ordered and decreed that his judgment be reversed, and a decree here rendered, dismissing the petition and quashing the proceedings. Let the appellee and his sureties pay the costs of the original proceeding in the court below, and himself pay the costs of appeal both in this court and the court below.