Opinion
7 Div. 122.
January 4, 1935.
Original petition of Arthur M. Hixon for mandamus to Hon. A. E. Hawkins, as Judge of the Circuit Court, De Kalb County.
Writ denied.
The petition avers that petitioner, a qualified elector of De Kalb county, was a candidate for the office of county commissioner for the Fourth commissioner's district of De Kalb county in the election held on November 6, 1934; that on November 9, 1934, the board of supervisors of election of De Kalb county met, tabulated the votes cast in said election, and declared the results of said election, and made a certificate to the secretary of state that petitioner had received a majority of the votes cast for said office; that, under the law (Gen. Acts 1933, Ex. Sess., p. 204, § 13), it became the duty of respondent, as circuit judge of the county, to fix the amount of and approve the bond of each member of the court of county commissioners; that respondent refused petitioner's request to fix the amount of bond for petitioner and stated that he would not fix the amount of his bond or approve same. Further alleging that, unless this court intervenes, the office will be declared vacant and petitioner deprived of his office, it is prayed that a writ of mandamus issue to respondent requiring him to fix the amount of petitioner's bond, or show cause why he should not do so.
Respondent, by answer to the petition, says that the declaration of the results of said election is void, together with the certificate upon which he bases his right to the office; that managers of the election refused to tabulate and count certain absentee ballots cast for petitioner's opponent, which ballots, if counted, would have changed the result and have defeated the petitioner; that, prior to the declaration of results of said election, by proper proceedings mandamus was issued by respondent to compel such election managers to count said absentee ballots and certify same to the board of supervisors, and the board of supervisors was prohibited from declaring the results of said election until said votes had been counted and certified. It is further shown that, in disregard of said writ of mandamus, the board of supervisors proceeded corruptly and illegally to declare the result of the election before said absentee ballots had been tabulated.
John D. Isbell, of Fort Payne, and Oliver D. Street, of Guntersville, for petitioner.
The certificate of the board of supervisors is conclusive. Carnley v. Moore, 214 Ala. 114, 106 So. 604; Moulton v. Reid, 54 Ala. 320, 323. The decree or order of respondent was void in so far as it relates to said board of supervisors. Leigh v. State ex rel., 69 Ala. 261; Hudmon v. Slaughter, 70 Ala. 546; State ex rel. Thompson v. Circuit Judge, 9 Ala. 338; Spence v. Judge, 13 Ala. 805; 20 C.J. 202; 26 Cyc. 142; State Tax Commission v. Bailey Howard, 179 Ala. 620, 60 So. 913; Harmon v. Hamill, 97 Ala. 107, 11 So. 892.
Hugh Reed, of Center, and Chas. J. Scott and Haralson Son, all of Fort Payne, for respondent.
The return made by the board of supervisors was void. Reid v. Moulton, 51 Ala. 255; 50 C.J. 713, 681. Mandamus was the appropriate remedy to require a lawful tabulation of the ballots. The writ was providently issued, and, standing unappealed from, should have been obeyed.
Petitioner bases his right to the writ of mandamus upon a certificate of election issued by the board of supervisors of elections of De Kalb county declaring him to have been elected to the office of county commissioner for the Fourth commissioner's district of De Kalb county. It is admitted that such certificate was issued in manifest violation of an order of A. E. Hawkins, as circuit judge, of which order petitioner had knowledge.
It is now finally determined by our Supreme Court that the order issued by Judge A. E. Hawkins, restraining the said board of supervisors from issuing the said certificate of elections to petitioner, was within his power and jurisdiction and was in full force and effect at the time of the issuance of said certificate. Ex parte State ex rel Knight, Atty. Gen., 158 So. 317. Being in direct violation of a valid order of a court of competent jurisdiction, the certificate of election issued by said board was and is void and of no effect, and therefore Judge A. E. Hawkins, as judge, was under no duty to fix the bond for petitioner as demanded.
Writ denied.