Mobile register and journal., 1845-10-09

Judoe Cu,bbert's OPINIONS Sin the matter OF Edwin
Rust who tenacrs for approval his Bond as
Clerk of the County Court of Mobile county,"
With due difference 10 the Judge, we dissent from
his opiuicns, and propose briefly to examine the
GROUNDS upon which it rests. The Importance of
The matter to the community in Our judgment justi
fees the enquiry.
To arrive at a correct conclusion, it is needfu 10
ascertai in what the law previous 10 l840 as 10
the appointment and qualification of Clerks OF The
County Court, and then examine The act Of 1910,
and see what are its provisions and whether they
have in The case under discussion been complied
with.
Anterior TO 1910, the constitution had dec Jared
that the Clerks Should be elected 'for the term of
four years, and by various statutory provisions, it
was made The duty of the sheriff TO open the polls
for the election Of said officers, that the Court of
Roads and Revenue should appoint managers Of
such election The person receiving the greatest
number Of votes should be declared duly elected.
Such was the constitutional provisions, and such
the statutory regulations previous to 1910.
Antecedent 10 that period no mode preserIb-
ed by which an election for Clerkship could be
contested. The party who had been declared duly
elected and who had received the sheriff's eerti6-
cate entitled upon giving bond to be admitted
into the office. If indeed by fraudulent combna
ton between the sheriff and managers, or through
error OF those officers, an Individual was declared
elected who intact had not received the highest
vote, and thereby third party WAS insured-he
had his remedy II is a legal axiom that there can
be no wrong without remedy. II in the event we
have supposed third party conceyes himself ag
grieyed, the Courts of his county aie open for the
investigation AMI determination of his
But IN the me,ntime the person who has been
declared elected is entitled TO be admitted into the
enjoyment oil the office and its profits upon his taxi
ing the necessary oalhs and executing his bond.
The certiicat, of the sheriff is pri,na tdcia evil
dence of his having been dulv elected, and on The
contrasting pariyIs thrown the burthen Of proving
the circumstances that would nvaidae The election.
Such we heese to have been the law previous to
1910. And If So, previous to that term, Rust, upon
exhibiting to Juge Cuhbert the sherf's certificate
declaring him tolave received the highest was
entitled To have lis bond approved if the securities
were sufficient
in what particula'? For the purpose of answering
this question satisfactorily, we make room for the
act. 1t is folsws*-
Upon reading his statute the frat enquiry which
suggests itself is. what must first be done by the
party wishing tocontest. According to the LIST
ton he must within twenty days give notice to the
person whose election is disputed, setting forth the
grounds OF the Contest.
In order 10 provide for the contingency ola con-
test, section ofle act requires the maDagers
of the election, retain in their possession, called
up and secured, he votes given al such election, ur
the space of weIiy days. and should notice be CIV
en- TO them within that time, bv any candidate that
the election will De contested. then to make returns
Of all the votes sealed W aforesaid, 10 the Judge
of the Circuit Court, who shall keep The same with
the certificate OF he person elected for the space of
twenty days in oder that SAID election may be con-
tested by any one being candidate.
Ii is seen that by this section. the managers are
required to retain The ballots twenty days. and if
notice within thai time is given them that the cleo
ton is contested, then make returns TO the Judge
of the Circuit Colrt The word then is the insight
fcant one in the sentence. 1t refers sio the time
allowed for the managers to receive notice that the
e election will I've contested.
Ii can be referred to at no other period OF time
Ii cannot be pretended that when the law in express
terms commands the managers TO return the votes To
the Judge ofihe Circuit Court at given ti,ne that
they are thereby al any unlimited time afterwards
to make the return.
II is known that the managers have not made the
return within the line prescribed by law, and we
deny that they have any power TO make that return
after the lapse fthe allotted time.
Ii will be said that return has been prevented by
the absence of the Judge. But this DIES not alter the
case. The language Of the statute is imperative,
hat law il seems that such case as we are now
arguing was not contemplated by the Legislature.
The statute must be strictly adhered 10 OF its
provisions cannot control the case.
IT. then, its requirements have not been obeyed-Ifl
The managers have not made the return within the
designated time--if they have no legal warrant 10
make that return any subsequent lime, and II rs
We contend, the right Of the Circuit Judge TO settle
he controversy, according TO the provision OF that
aw, depends upon an obedience 10 Its mandates by |
lie managers, with what show ofreasoning we ask.
AN Judge Culhbert affirm that the matter is before
lie Judge of the Circuit for his determination!
And Il il be not before him, he surely is not the
Supervisor of the election"
Herein consists the error Of Judge Cuihbert. He |
ssunss that the act Of 1910 has been sufficiently
complied with by the managers; and consequently |
hat the controversy between Rust and Thompson |
must be settled under thai law. What we have al |
eady SAID establishes, think, the iallacy of this
pinlon. III
We have endeavored to shew that the power of
he Circuit Judge to determine the dispute, according
O the statute, depends upon previous compliance |
With It's other requirements, and if from neglect or
nv other cause, ihe preliminary Steps have not been
takcn--the Circuit Judge is moi to use the
,ngusge Of Judge Cuhbert the supervisor Of the
lection. lIsl
Judge Cuihbert tells us that IL he had rima faeia
violence of MIR. Rust's election, he would approve
he bond, the securities being sufficient. But he
,,tlhods his approval because In his opinion such
violence has moi been furnished.
Let us examine this. five have been successful
our argument upon the law Of 1910, il is clear
rat tie matter IN issue batween the claimants for
10 Office must 10 determined without reference to |
70. SELL and lha, Jsags g. ssansI find shelter bshad