Mobile register and journal. [volume] (Mobile, Ala.) 1841-1849, 1845-09-30

The following opinion and decision Of Judge
Cu'hber IN regard 10 the late election of Clerk Of
the County Court, bias been handed to for publica
tim:
In the matter of Edwin Rust, who tenders for APP
prevail his bond as Clerk of the County Court of
Mobile County:
Mr. Rust alleges, that at the general election.
held The first Monday in August last, he was
elected 10 the office of Clerk Of tie County Court
Mobile County, aud 10 proof of ha election, he ex-
hbils certificate signed by George Bancroft, ESQ.,,
as Sheriff nj said County.
Mr. Drury Thompson given me notice that he
contests The election OF Mr.. Rust.
IL is my opinion, thai il | have pr1na jdcie evil
dence that Mr.. Rust has bsen elected to the office,
ought to act ON his bond, and approve II sufficient
or reject IL as insufficient: but that If | have not
pr,ma (acie evidence Of his election, ought not TO
act on the bond Have such evidence?
Under the act Of 1910, regulating the mode OF con
les ting eleclons, it is made the duty Of The mana
gsrs u the xectinn, ON recelvng notice that II is
contested TO transmit all The votes sealed up TO the
Judge Of the Circuit Court. IL is then made the du
~ Of the Judge Of the Circuit Court after examining
the evidence, determine whether said election has
been legally or illegally conducted, and 10 certify the
TACT to the Governor.
Acco ding TO the construction given to the net Of
1910 by our Supreme Court, in the case Of Wom-
mack Va. Holloway, in AlilaIna Rep, 81, the
Judge of the Circuit Court acts IN supervisor Of
the eec' ion. He is sole SUPERVISOR lie occupies
the place of those originally appointed supervisors
and he exercises the poweri, and discharges the du-
ties which had been by law assigned TO them so far
as the present Stage of the election proceedings will
permit Until he shall have discharged these duries,
there can have been no valid and complete superyi-
sion o. the election; and until then, it cannot legal
" be pronounced that there has been lawful cleo
tiou or that any individual has been lawfully elect
ed
In the same case the Supreme Court decides, that
the Judge of the Circuit Court ascerans the prima
fduis right of one of the claimants TO the Office or
rejects the claims of all. According to this view
until the Judge of the Circuit Courl has made his
decision And in order prevent any party setting
up claim 10 the Office before The decision of the
Judge of the Giro uit Court shall have been made,
il is provided by the statute that the certificate Of
election, which may have been previously made,
shall be kept by the Judge aforesaid for twenty days;
thereby leaving The contest entirely open.
Until the Judge Of the Circuit Court has made his
decision. The Governor cannot recognize any claim
ant as having pr'ma tac'e right to the oice; for the
certificate of election is by law w,thheld from that
high officer. The Governor cannot lawfully issue II
commissions before he shall have received the cerIi-
icale Of the Judge Of the Circuit Court. ascertain
ing the p,imr facie right Of one of the claimants.
arrive at the following conclusions:
The supervison of the election is not yet compile
ted and there cannot. this time, be any prima ia
Gle evidence thai Mr.. Rust has been elected.
The prina facie right of no one claimant has yet
been ascertained by The proper tribunals; and can
not recognise MI. Rust as showing prinia tdcis
right to the office.
For the foregoing reasons, decline acting on the
bond rendered by Mr., Rust
JOHN A. CUTHBERT, C. C. NC.
Sept. l, 1915,