Opinion
8 Div. 438.
May 18, 1933. Rehearing Denied June 22, 1933.
Appeal from Circuit Court, Marshall County; A. E. Hawkins, Judge.
Street Bradford, of Guntersville, for appellants.
The fact that the validity of an election is called in question in a suit in equity where the equity court is exercising its recognized jurisdiction does not make this a contest of an election. Coleman v. Eutaw, 157 Ala. 327, 47 So. 703. Failure to submit a map with application for a special election rendered the election void. Ala. School Code 1927, § 230. The fact that the special election was held at an unauthorized place rendered it void. 20 C. J. 102. It was essential that notice of time and place of holding the election be given. Shanks v. Winkler, 210 Ala. 101, 97 So. 142; 20 C. J. 97; Court of County Com'rs v. Thurmond, 116 Ala. 213, 22 So. 558. The act of 1931, page 97, does not cure fundamental defects in the calling and holding of the election, such as that no map was submitted; that the election was not held at the place authorized by law; that no notice of time and place of holding the election was given; that the boundaries of the district had not been fixed; and that a majority of legal votes cast at said election were against the tax.
Joe Starnes, of Guntersville, for appellees.
A court of equity has no jurisdiction of any cause or proceeding for ascertaining the legality, conduct, or results of any election. Code 1923, § 549; Gen. Acts 1923, p. 552; Gen. Acts 1927, 498. But if there were irregularities in the election they were cured by subsequent statutes. Gen. Acts 1927, pp. 27, 187; Gen. Acts 1931, p. 97. See McCormick v. County Board, 223 Ala. 453, 137 So. 171.
The bill was filed to contest the validity of the three-mill school tax on account of certain defects or irregularities growing out of the ordering and holding of an election as provided by the Alabama School Code (section 261 et seq.). The questions here involved, or some of them, were settled by this court in the case of McCormick et al. v. County Board of Revenue of Marshall County, 223 Ala. 453, 137 So. 171, wherein it was held that the proceedings were not invalid or subject to be quashed under the common-law writ of certiorari.
We think that the act of 1931 (Gen. Acts 1931, p. 97) has cured all the defects complained of in the bill of complaint, and, whether said bill contained equity when filed, the said act of 1931 was effective when the decree dismissing the bill was rendered, and, if not justified for other reasons, said act made it a moot case, and the dismissal of the bill can be well justified upon this ground. The said act is broad enough to cover all charges made in the bill, except that the tax was not adopted by a majority of the votes. It says, when said election resulted in a majority of the votes cast being in favor of the special county or district tax for school purposes: "And which said elections were irregular by reason of failure prior to the actual holding of the elections to give notice thereof in a newspaper, or by reason of any other irregularity, be and the same are hereby ratified and confirmed and given effect in all respects as if all the conditions, preliminary and prior to the actual holding of such elections as required by the aforesaid Act had been duly and legally complied with." Therefore, the only condition precedent for the application of the act is that a majority of the votes cast favored the special tax. True, the bill charges that a majority of the votes cast did not favor the tax, but it has an exhibit, and as a part thereof, a copy of the record of the board of revenue finding and holding that a majority of the votes cast favored the tax, and this is conclusive except upon a contest of the election, as authorized by the Act of September 9, 1927 (Gen. Acts 1927, p. 498).
We must not be understood in affirming this case upon the grounds above set forth that a court of equity would be the proper forum to invalidate the tax in question.
The decree of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.
Upon Rehearing.
It is urged, upon application for rehearing, that the Gen. Acts 1927, p. 498, is unconstitutional under the case of Clarke v. Jack, 60 Ala. 272. The act in the Clarke Case is not like the act of 1927, nor was the one in the Clarke Case held unconstitutional; it was merely held that said act made no provision for a contest, and that the general election law did not provide a contest of elections like the one involved. The act of 1927 expressly provides for a contest of elections here involved and applies the machinery of contesting general elections of county officers.
Rehearing denied.
GARDNER, BOULDIN, and FOSTER, JJ., concur.