Dismukes v. Jones

ANDERSON, J. The act regulating the establishment of stock districts in Etowah county (Acts 1900-01, p. 170) among other things provides: “Said ballots at the close of the election shall be counted by the managers and the result certified to the probate judge within two days after said election. If a majority of the votes cast as certified by the managers are in favor of prohibiting stock from running at large the said probate judge shall enter on the minute books,” etc. It must be observed that the proper entry of the probate judge is esential to the establishment of the stock district, and that he is authorized to make such entry upon the min [443] utes only in case the result is certified to him by the managers. The probate judge has limited jurisdiction, and the right to act in this matter is by virtue of and under the authority of this act of the Legislature, and in order for said entry or declaration. to be valid it should recite the jurisdictional facts: “If, before exercising authority or jurisdiction, the court must first ascertain the existence of a particular fact or particular facts, its records must show that, before proceeding to act, the facts were ascertained. The ascertainment is not presumed, or inferred, from the exercise of the jurisdiction or authority.” — Joiner v. Winston, 68 Ala. 129; Gunn v. Howell, 27 Ala. 663, 62 Am. Dec. 785. We think the entry made by the probate judge, as set out in this record, shows affirmatively that the result of the election was certified by only one of the managers, notwithstanding the word “managers” is used in one part of the entry The statute gives the probate judge authority to enter the return only in the event the result is certified to him by the “managers” — not' one of them— Avhicli is a condition precedent. The authorities are in conflict as to whether or not the result of an election should be certified by all of the managers, or would be sufficient if certified by a majority. — 15 Cyc. 386; 10 Am. & Eng. Ency. Lew, 739. The cases Avhere the act of a majority was held to be sufficient involved contests of election for office, and after the returns had been certified to and counted by the canvassing board. The election in this case Avas unlike one for. office, and the law requires that the result must be certified to the probate judge by 'the managers before he has authority to make the entry. Moreover, the law does not provide for but tAvo managers for holding the election in this instance, and. should the majority rule apply as to certifying the result of elections of this character, there would still [444] be no majority or quorum to tbe certificate. — 23 Am. & Eng. Ency. Law, 590. It is insisted that tbe law is not so unreasonable as to leave tbe petitioners to tbe mercy of a partisan manager, opposing them, and thus permit a denial of tbeir relief, by obstinately refusing to certify, altbougb tbe election Avas largely favorable to them. It would seem that they could compel him to act if be disregards bis duty. — State ex rel. Thompson v. Circuit Judge of Mobile, 9 Ala. 338; 15 Cyc. 386. But, be that as it may, we can only interpret the law as it is — not as it should be. I tbink tbe trial judge erred in not sustaining tbe defendant’s objection to tbe entry of tbe probate judge, offered in evidence. It is insisted by appellant that tbe petition did not give tbe probate judge authority to order tbe election, etc., because it seeks to “restrain” stock from running at large, and not “prohibit” as provided by tbe wording of tbe statute. This objection was hypercritical. — Whitlock v. West, 26 Conn. 406; Osborne v. Kimball, 41 Kan. 187, 21 Pac. 163. My Brothers are of tbe opinion that tbe proceedings are not void, and were not subject to collateral attack, and the judgment of tbe city court must be affirmed. I tbink that a proper certificate was essential to give authority to tbe judge to make tbe order, and, Avhile tbe order recites that tbe result Ayas certified by tbe “managers,” it specifically avers that one of them refused to certify, and was therefore void. Affirmed. All tbe Justices concur, except Anderson, J., who dissents.