Scheuing v. State ex rel. Attorney General

McCLELLAN, J.

Proceedings in the nature of quo warranto to test the right of the appellant to occupy *164 and exercise the functions of the office of sheriff of the county of Cullman. Bryce and Scheuing (appellant) were opposing candidates for sheriff-in the general election of 1910. Bryce was given the certificate of election. Scheuing instituted his contest of the election before the judge of probate as was authorized in such cases by Code, § 471, and on October 21, 1911, the judge of probate declared the contestant the duly elected sheriff of Cullman county. Code, § 470, provided for the contest of the election of judges of probate in the circuit court, and established the method of procedure therefor.

Pending the contest instituted by Scheuing, and before any final adjudication upon the issues of fact thereupon, it was enacted, by an act approved April 5, 1911 (Acts 1911, p. 195), that section 470 should be amended so as to require the contest of an election of sheriff, among others, to be instituted and conducted to judgment in the circuit court of the county wherein the election assailed was held. This act also provided for the repeal of all laws and parts of laAvs in conflict therewith, and also that it should go into immediate effect. Manifestly the enactment of April 5, 1911, repealed the law under which Scheuing instituted his contest and under which it Avas then (April 5, 1911) pending, unless constitutional restraints effected to deny to the laAvmakers the poAver to take from a pending contest the legal basis for its existence or continuance.

Contests of election are proceedings of purely statutory creation. They do not othenvise exist. —Black v. Pate, 130 Ala. 514, 526 , 30 South. 434 ; Paine on Elections, § 793; Moulton v. Reid, 54 Ala. 320, 326 . The hiAAunakers, unless the Constitution otherwise requires, possess the complete discretion to authorize contests of elections; and, if so authorizing them, to prescribe the jurisdiction, methods, and means therefor. — Author, supra.

*165 No one has a vested right in any particular remedy. The repeal of a statute providing a remedy, while proceedings are pending thereunder, will determine the pending proceedings, unless the Legislature otherwise provide.—Cooley’s Const. Lim. (7th Ed.) pp. 515, 516. If there is no contract involved, no vested right, one Legislature’s action cannot bind another. —Gilleland v . Schuyler, 9 Kan. 569, 580 ; Cooley, pp. 174, 175.

The right to contest an election is not, in itself, a vested right. —Gilleland v. Schuyler, supra. In this case it was pointedly ruled that, pending an election contest, the Legislature might validly repeal the law authorizing it, and thereby and then terminate the litigation.

Section 95 of the Constitution of 1901 reads: “There can be no law of this state impairing the obligation of contracts by destroying or impairing the remedy for their enforcement; and the Legislature shall have no power to revive any right or remedy which may have become barred by lapse of time, or by any statute of this state. After suit has been commenced on any cause of action, the Legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit ”

It is contended that, if the act of April 5, 1911, is interpreted or given effect to terminate the then pending contest of the sheriff’s election in Cullman county, the result would be to render the act constitutionally invalid in that respect for that it would conflict with the last clause (italicized) of that section. It is insisted that the contest of an election is a cause of action within the meaning and effect of that clause of the organic law.

There is a clear distinction between a cause of action and the remedy for its enforcement. . The former arises, comes into existence, Avhen there is an invasion of a legal right Avithout justification or sufficient excuse. Ac *166 tion is one thing; cause or right of action quite another. The action is the means of redress of the legal wrong described by the words cause of action. The cause of action precedes and affords the right to the remedy by such action as the laws furnish. This idea, obviously sound, may be found excellently, lucidly stated in Emory v. Hazard Powder Co., 22 S. C. 176, 53 Am. Rep. 730 , 732. The, perhaps at times, incautious use by judicial writers of terms indicative of failure to note the important distinction between the right and the remedy has invited some confusion which might otherwise have been avoided. Action or suit is “a civil proceeding taken in a court of law to enforce a right;” or “the lawful demand of one’s rights;” or “the means by which men litigate with each other.” —Wynn v. Tallapoosa County Bank, 168 Ala. 491 , 53 South. 237 . The distinction pointed out was taken by the makers of the organic law when, in the clause italicized, they juxtaposed, in a sense,- the terms “suit commenced” and “cause of action existing.”

In Shields v. Davis, 103 Tenn. 538 , 53 S. W. 948 , the inquiry was one of statutory construction. The proceeding was the contest of the election of a sheriff. It was provided in the statute that the chancery court “shall have and exercise concurrent jurisdiction with the circuit court of all civil causes of action (italics supplied) triable in the circuit court,” with exceptions not now important. The Supreme Court ruled that the contest of the sheriff’s election was not a proceeding within the italicized terms of the statute, was not a cause of that nature; and hence dismissed the bill whereby the contest was sought to be effected in the chancery court. This ruling was approved in Baker v. Mitchell, 105 Tenn. 610 , 59 S. W. 137 .

The cause of action, against the taking away of which by the Legislature section 95 of the Constitution pro *167 vides, necessarily comprehends only causes of action arising out of the violation of vested legal rights of some description. A public office, in this state, is a “personal public trust, created for the benefit of the state,” and “has in it no element of property.”—Ex p arte Lambert, 52 Ala. 79, 82 ; Lovejoy v. Beeson, 121 Ala. 605 , 25 South. 599 . The provision of the organic law for the protection of the right of trial by jury does not require determination by a jury of the asserted right to public office. —Moulton v. Reid, 54 Ala. 320 . The Legislature may prescribe a trial of the issue by a jury, but there is no compulsion to that end. In Love-joy v. Beeson, the question was whether an healing act, passed pending the contest of the election of a probate judge, “disturbed vested rights” in that it ratified and confirmed the election then being contested against irirregularities attending it. The court, through Dowdell, J., said: “We think it a clear proposition that the act does not in any manner interfere with- vested rights. The office of probate judge is a public office created for governmental purposes, and not for the sole benefit of any single person. * * * For the same reasons, it may be said it cannot be the subject of contract rights. Being therefore neither the subject of property or contract rights, the suggestions that the act in question is an invasion of vested rights is unsupported by reason or argument.” The court then proceeded to sustain the statute in its obviously retroactive effect, which, it was ruled, the Legislature might effect in any' case where contract or property rights were not involved. The principle applied is well recognized. —Ex parte Buckley, 53 Ala. 54 ; Courtner v. Etheredge, 149 Ala. 85 , 43 South. 368 . A public office itself being Avithout element of property or vested right, a contest of the result of the election to select its incumbent can be of no higher dig *168 nity. So it was said, by Brewer, J., in Gilleland v. Schuyler, supra: “The right to contest an election is no’ vested right. Given by one Legislature, it may be taken away by another. Even the commencement of a contest gives no vested right to complete it. In medias res, a Legislature may intervene, repeal the statute, and terminate the litigation.”

Upon these considerations it must be held that the contest, instituted by Scheuing, pending when the act of April, 1911, became effective, was not a cause of action, a vested right, within section 95 of the Constitution. That act repealed the law under which the contest was instituted and took away the jurisdiction which,, when begun, justified it. The judgment pronounced, in that proceeding, by the judge of probate on October 21, 1911, declaring Scheuing the duly elected sheriff of Cullman county, was wholly void, since the jurisdiction to so adjudge in a contest of an election to that office was then (October 21, 1911) vested alone in the circuit court, and not elsewhere.

The rulings of the court upon the demurrer and in the judgment of ouster of the appellant were well advised, and are affirmed.

Affirmed.

Anderson, Mayfield, Sayre, and Somerville, JJ., concur. Simpson, J., dissents. Dowdell, C. J., not sitting.