Opinion
6 Div. 246.
January 12, 1933.
Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge.
Horace C. Wilkinson, of Birmingham, for appellant.
A court of equity will exercise its jurisdiction to protect the incumbent of an office who shows a prima facie right to continue in office. against the intrusion of an adverse claimant, out of possession, whose title is not yet established, although the determination of the question whether the interference is unlawful may depend upon whether an election is legal or the claimant eligible. Ekern v. McGovern, 154 Wis. 157, 142 N.W. 595, 46 L.R.A. (N.S.) 796; Morgan Park v. Chicago, 255 Ill. 190, 99 N.E. 388, Ann. Cas. 1913D, 399; People v. McWeeney, 259 Ill. 161, 102 N.E. 233, Ann. Cas. 1916B, 34; Wilton v. Pierce County, 61 Wn. 386, 112 P. 386; East Springfield v. Springfield, 238 Ill. 534, 87 N.E. 349; 5 Pom. Eq. Jur. §§ 335, 231, 236; 2 High on Inj. (2d Ed.) § 1315; Wright v. Cook, 216 Ala. 270, 113 So. 252; Goin v. Smith, 202 Ky. 486, 260 S.W. 10; Wood v. Miller, 154 Ark. 318, 242 S.W. 573; Black v. Lambert (Tex.Civ.App.) 235 S.W. 704; 32 C. J. 41; People v. Common Council of City of Chicago, 53 Ill. 424. Where the legal incumbent of an office is authorized to hold over after expiration of the term until his successor is elected and qualified, the period of his holding over is as much a part of the term as the regular period fixed by law. Wood v. Miller, 154 Ark. 318, 242 S.W. 573; Jansky v. Baldwin, 120 Kan. 332, 243 P. 302, 47 A.L.R. 476. Even as a taxpayer, complainant's interests are sufficient to authorize his resort to a court of equity. Goin v. Smith, supra. Section 549 of the Code of Alabama must be strictly construed. It does not divest courts of equity of their jurisdiction to protect incumbents of offices against the intrusion of claimants out of possession whose title is not yet established. A proceeding of that character is not a contest of an election but a challenge of the eligibility of the claimants. Wright v. Cook, supra; Dennis v. Prather, 212 Ala. 449, 103 So. 59; Petree v. McMurray, 210 Ala. 639, 98 So. 782; Wood v. Miller, supra. An attempt to divest the court of jurisdiction to administer relief under such circumstances would be unconstitutional. Ala. Const. 1901, §§ 144, 146; 12 C. J. 816; Brown v. Judge, 75 Mich. 274, 42 N.W. 827, 5 L.R.A. 226, 13 Am. St. Rep. 438; In re Littmann, 88 Misc. 403, 150 N.Y. S. 607; Burnham v. Bennison, 121 Neb. 291, 236 N.W. 745; Lacey v. Zeigler, 98 Neb. 380, 152 N.W. 792. The Corrupt Practice Act requires a candidate to file declaration of appointment of a committee to receive and disburse funds and to file statement of his expenses. The Legislature plainly intended that a candidate for municipal office should file the required papers with the probate judge of the county in which the municipality is located. A municipal office is also a district office. Code 1923, §§ 583-594.
Fitts Fitts, of Birmingham, for appellee.
A court of equity, independent of statute, has no jurisdiction to try the title to public office, or to settle an election on an application for injunction. Moulton v. Reid, 54 Ala. 320; Little v. Bessemer, 138 Ala. 127, 35 So. 64; Casey v. Bryce, 173 Ala. 129, 55 So. 810; State v. McFarland, 57 N.D. 708, 223 N.W. 931; Harries v. McCrea, 62 Utah, 348, 219 P. 533; 2 High on Inj. (2d Ed.) §§ 1250, 1312, 1313; 1 Spelling on Inj. (2d Ed.) §§ 620, 630, 692; 4 Pomeroy's Eq. Jur. (4th Ed.) § 1435; 20 C. J. 209; 46 C. J. 1007. The rule that an incumbent of an office, who shows a prima facie right to continue in office, may be protected by an injunction against the intrusion of adverse claimants out of possession, whose title is not yet established, can be invoked only by the one who is actually in possession of the office, and cannot be applied in favor of a citizen or taxpayer. Casey v. Bryce, supra; Wright v. Cook, 216 Ala. 270, 113 So. 252; 2 High on Inj. (2d Ed.) § 1315; 4 Pomeroy's Eq. Jur. (4th Ed.) §§ 1757, 1758; State v. Aloe, 152 Mo. 466, 54 S.W. 494, 47 L.R.A. 393; State v. Van Beek, 87 Iowa, 569, 54 N.W. 525, 19 L.R.A. 622, 43 Am. St. Rep. 397; Fahy v. Johnstone, 21 App. Div. 154, 47 N.Y. S. 402; Brumby v. Boyd, 28 Tex. Civ. App. 164, 66 S.W. 874. As between an incumbent of an office and one out of possession who has been declared elected by a plurality of the votes cast in a popular election by proper action of the legally constituted canvassing board, the latter has the prima facie right to possession of the office. Moulton v. Reid, supra; Echols v. State, 56 Ala. 131; Casey v. Bryce, supra; Supervisors v. O'Malley, 46 Wis. 35, 50 N.W. 521; State v. Johnson, 35 Fla. 2, 16 So. 786, 31 L.R.A. 357; Miner v. Beurmann, 165 Mich. 672, 131 N.W. 388; State v. Miltenberger, 33 La. Ann. 263; 46 C. J. 1007. Section 549 of the Code is controlling in this case. Casey v. Bryce, supra; Dennis v. Prather, 212 Ala. 449, 103 So. 59; Wright v. Cook, supra; Wilkinson v. Henry, 221 Ala. 254, 128 So. 362, 70 A.L.R. 712. The bill does not show that respondents violated any provision of the Corrupt Practice Act. Code 1923, §§ 588, 592, 593, 594. Or that they are in any way disqualified from holding the office to which they have been elected. Code 1923, §§ 587, 589, 590, 594, 595. The act being highly penal is to be strictly construed, and no provisions not included by express language of the statute can be read into it by implication.
It is well settled that, for one in possession of a public office to invoke the aid of a court of equity to protect his proprietary interest therein by injunctive process, he must show a continuing prima facie right to occupy the office as against his adverse claimant. Casey v. Bryce, 173 Ala. 129, 55 So. 810; Wright et al. v. Cook et al., 216 Ala. 270, 113 So. 252.
This principle is limited to the incumbent in possession to protect a proprietary right, and does not extend to a mere citizen and taxpayer who has no proprietary right, and whose only right is in common with the general public. Wright et al. v. Cook et al., supra.
Taking the averments of the bill as true, the only office in which the complainant had any proprietary interest is the office of alderman of ward 5 of the municipality of Homewood, to which he was elected, and upon which he entered on the first Monday in October, 1928; that in a popular election held in the municipality, on the 19th day of September, 1932, he was a candidate for re-election, and was opposed by the respondent Overton and one Charles Kunz; that in said election complainant received 401 votes, Overton received 452 votes, and Charles Kunz received 520 votes; that on the 20th of September, 1932, the city council of Homewood met and canvassed the, returns of said election, and adopted a resolution declaring the result, and directing the issuance of a certificate of election to Overton and Kunz.
The right of Kunz to enter into and exercise the duties and functions of the office is not questioned by the bill. But the complaint alleges in substance that Overton violated the Corrupt Practice Act, in that he failed to designate a committee to receive contributions in aid of his candidacy and to file an itemized, sworn statement thereof with the judge of probate of Jefferson county, and therefore his election to the office of alderman of ward 5 is void and of no effect. Code 1923, § 582 et seq.
We are clear to the conclusion that these averments do not sustain the equity of the bill, or authorize injunctive relief, for the following reasons: First, for all that appears in the bill, Kunz, whose election is not questioned, is entitled to take and hold the office now occupied by the complainant (Casey v. Bryce, supra); and, second, while section 586 of the Code of 1923 prescribes the amount candidates for municipal offices may expend in the aid of their candidacy, and section 587 declares "the expenditure by any candidate for a public office of an amount in excess of the amounts herein specified shall disqualify said person for said office," there is no provision in section 588, requiring candidates for municipal offices to file statements of their expenditures.
Appellant's contention here is, that the provision, "And if it be a district or circuit office, file with the judge of probate of each county which is embraced in said district or circuit," applies to offices of municipal corporations. The statute is highly penal, and will be strictly construed. To construe the quoted clause as covering offices in municipal corporations would be a very liberal and loose construction.
The last reason is that the bill goes to the validity of the election, and by the provisions of section 549 of the Code jurisdiction is denied to courts of equity in such cases.
The decree of the circuit court is free from error, and must be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.