Foshee v. State , 210 Ala. 155 ( 1923 )

It is urged upon rehearing that the foregoing opinion is wrong in holding that the writ should not be denied because the question has become moot, in that the statute requires that the contest be interposed within 20 days, and, notwithstanding the respondent may have been wrong in failing to approve the security, his conduct in doing so has rendered the contest impossible. Our attention is called to a note in the case of Tabor v. Hipp, 24 Ann. Cas. 247, wherein the general doctrine is stated as follows:

"It is the function of the courts to decide actual controversies by judgments which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matters in issue in the cases before them. So when, pending proceedings to review the judgment of the lower court, an event occurs which renders it impossible for the reviewing court to grant any effectual relief whatever, the court will not determine the questions litigated below, but will dismiss the appeal or writ of error."

We take no issue with the foregoing statement, but still hold that no event has occurred making the granting of the writ in this case impossible or unnecessary. True, the contest must be instituted within 20 days after the result of the election is declared and must be accompanied by security for cost to be approved by the clerk; but the contest was filed within said time and the security was sufficient, and the arbitrary refusal of the respondent to approve same did not require this relator to resort to the courts and procure a compulsory approval within said 20 days — something practically impossible. We do not think that the law is so unreasonable as, in effect, to require the impossible; that is, means that notwithstanding the relator is given 20 days to file his contest and he does so on the last day and the clerk wrongfully refuses to approve the security, he must petition for mandamus, find the circuit judge, who may not reside in the county, get the case heard and a judgment compelling approval before midnight. The refusal to approve being wrong, the same should now be compelled and become effective as of the time it should have been given. We are, of course, aware of certain cases where the writ was denied, or the petition dismissed, when the act sought was subsequently performed or has become impossible; for instance, when a license was sought for a certain year or period and the time had expired before the final hearing of the cause, or where a contract is to be performed within a certain time and the period expires before the cause is finally adjudicated, as was done in the case of Comer v. Bankhead, 70 Ala. 136. But this is not that kind of a case, as the subject-matter of the contest is still in existence and the term of the office, which is being contested, has not yet expired.

The case of Norwood v. Clem, 143 Ala. 556, 39 So. 214, 5 Ann. Cas. 625, is in apparent conflict with our holding, but we regard the same as unsound, and said case is hereby expressly overruled.

Rehearing denied.

THOMAS, MILLER, and BOULDIN, JJ., concur in the opinion.

SAYRE, SOMERVILLE, and GARDNER, JJ., concur in the result and the opinion, except as to overruling the case of Norwood v. Clem, 143 Ala. 556, 39 So. 214, 5 Ann. Cas. 625. They think that the two cases can be differentiated, and that it is not necessary to overrule said Clem Case.