#### Dismukes *v.*Jones.

*Damages for Trespass of Stock.*

(Decided June 6, 1907.

*44*South. 22.)

1. *Animals; Running at Large; Stoclc Law; Election; Petition; Sufficiency.*— Under the provisions of Acts 1900-01, p. 170, a petition seeking to “’restrain” stock from running at large is sufficient to authorize the probate judge to order an election.

2. *Same; Certificate of Result Election.-*— Notwithstanding the Acts of 1900-01, p. 170, provides for-the appointment of two managers to hold the stock law election, such election is not void because the result was certified by only one of the managers, and hence, is not subject to collateral attack.

Appeal from Gadsden City Court.

Heard before Hon. John H. Bisque.

Action by John S. Jones against L. W. M. Dismukes. Judgment for plaintiff, and defendant appeals.

Affirmed.

This was a suit begun by appellee against appellant to recover damages for permitting stock to run at large upon land in the district in which stock is not permitted to run at large. It is set up by way of plea that the act under which the election was held required that the result be certified to the probate judge by two managers, but that one declined and failed to certify, and that the election ivas therefore void. Upon these issues the order establishing the district Avas sought to be introduced by the plaintiff. It shows all the jurisdictional facts, and also shows that the manager opposing the election refused to certify. Objection Avas interposed on these grounds, because it does not affirmatively appear*, from said record or otherAvise, that the managers who held said election ever certified the result thereof to the pro*442bate judge, and because it does affirmatively appear that only one of the managers ever certified the result.

Goodhue & Blackwood, for appellant.

The authority of the probate judge to enter the result of the election on the minute book must affirmatively *appear.*— Miller *v. Jones,*80 Ala. 89; *Toole v. The State,*88 Ala. 158. The acts of the judge in entering the result are ministerial and not *judicial.*— State *ex rel. Turner v. Bradley,*134 Ala. 550; *Flowers v. Grant,*129 Ala. 275. Neither petition for the election nor the certificate of the result of the election complied with the requirements of the statute — Acts 1900-01, p. 170.

Dortch, Martin & Allen, and Hood & Murphree, for appellee.

The petition was not defective on account of the use of the word, “restrain” instead of “prohibit”.— *Smith v. Town of*Warrior, 99 Ala. 481. The regularity of the election and the entry of the result cannot be collaterally attacked in this *proceeding.*— Montgomery *v. Henry,*144 Ala. 629; *Stansil v. Court or Revenue, Dallas County.*

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*443utes 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 *444be 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.*— Whit*lock 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.