Contesting Elections of Members of Legislature, Chancellor, Circuit Judge, Etc. may be had as are had against other defaulting witnesses in civil causes pending in the court. Testimony may also be taken by deposition in the case and in like manner as depositions are taken in other civil cases pending in the court.

(Feb. 10, 1892, p. 468, § 9.)-Taliaferro v. Lee, 97 Ala. 92 (13 So. 125); Parks v. State, 100 Ala. 634 (13 So. 756); Hilliard v. Brown, 103 Ala. 318 (15 So. 605).

471. (1697) (417) (324) (346) (301) Contest of justice of the peace, constable, or other office filled by the vote of a single county. If the contest be of an election to fill the office of justice of the peace, constable, or any office filled by the vote of a single county not in this article otherwise provided for, the person contesting must file in the office of the judge of probate of the county in which the election was held, within fifteen days after the result of the election has been declared, a statement in writing of the grounds of contest verified by affidavit, as required by this article, and must give security for the costs of the contest to be approved by the judge of the probate court; but in no case of an election contested under the provisions of this section shall the judge of probate require security for more than five hundred dollars; and the judge of probate may, from time to time, as may seem just and proper, require additional or better security; but in no event shall such security exceed five hundred dollars, and when such additional security shall be given and approved, it shall supersede any bond theretofore given and shall stand as security for the entire costs of the contest. The statement having been filed and security for costs given, the judge of the probate court must appoint a day for the trial of the contest and must order a summons to issue to the party whose election is contested, accompanied with a copy of the statement, requiring such party to appear and make answer to the statement within five days after the service of the summons. The judge of the probate court must appoint a day for the trial of the contest, not exceeding twenty days after the filing of the statement, and of the day appointed the party whose election is contested must have ten days' notice in writing served upon him by the sheriff or a constable of the county.

(Feb. 10, 1892, p. 468, § 10; Mar. 3, 1875, p. 76, § 54.) Limitation as to institution of contest; amendments; new grounds cannot be added as amendments after fifteen days.-Black v. Pate, 130 Ala. 514 (30 So. 434). Jurisdiction of city court to contest; security for costs; jurisdictional requirements of contest; mandamus, its functions and proper remedy as to elections.-Wilson v. Duncan, 114 Ala. 659 (21 So. 1017). Judgment on bond for costs for contest election for office of tax collector; probate judge vacating judgment.— Frazier v. McWhirter, 121 Ala. 308 (25 So. 804). Right of action on bond for contest.-Ib.; Dean v. Witherington, 116 Ala. 573 (22 So. 869); Wilson v. Duncan, 114 Ala. 659 (21 So. 1017); Hilliard v. Brown, 103 Ala. 318 (15 So. 605). Contests are unauthorized except by statute, and the statutory requirements must be strictly complied with, even as to the time of the contest and as to amendments of proceedings.-Black v. State, 130 Ala. 514 (30

Contesting Elections of Members of Legislature, Chancellor, Circuit Judge, Etc. So. 434); 136 Ala. 601 (34 So. 844). What fees recoverable as costs.-Dean v. Witherington, 116 Ala. 573 (22 So. 869). When judge of probate disqualified by interest. Medlin v. Taylor, 101 Ala. 239 (13 So. 310); Morrow v. Russell, 99 Ala. 271 (13 So. 21).

472. (1698) Same; procedure; testimony.-Either party to the contest is entitled to subpoena to compel the personal attendance of witnesses on the trial, which must be issued on application by the judge of probate, and the same proceedings may be had against defaulting witnesses as in matters litigated in the court of probate, such proceedings being returnable to any regular term of the court within three months after the same are taken. Testimony may also be taken by deposition in such cases and in like manner as in civil cases in courts of law, the commission to be issued by the judge of probate. If the ground of contest of the election be malconduct, fraud, or corruption on the part of any inspector, clerk, marker, returning officer, or other person, or because of bribery or offers to bribe imputed to the party whose election is contested, such party may demand a trial of those grounds by jury. All other grounds of contest may be determined by the judge of probate without the intervention of a jury. In the hearing and determination of the contest the judge of the probate court must be governed by the rules of law applicable to the hearing and determination of civil causes in courts of law.

(Feb. 10, 1892, p. 468, § 10.)

473. (1699) In all contests ballots may be examined.—In all contests of elections before the judge of probate, or before the chancellor, or the circuit court, the judge or chancellor presiding is authorized to make an examination of the ballots given or rejected in the election so far as he may deem it necessary to arrive at a correct judgment, and may make and enforce by attachment all necessary orders to obtain possession of the same, and must make all proper orders necessary for the return of the ballots to the proper custody after the same have been examined by him.

474. (1700) Judgment rendered.-If, on the trial of the contest of any election, either before the judge of probate, or the chancellor, or the circuit court, it shall appear that any other person than the one whose election is contested, received, or would have received, had the ballots intended for him and illegally rejected been received, the highest number of legal votes, judgment must be given declaring such person duly elected, and such judgment shall have the force and effect of investing the person thereby declared elected, with full right and title to have and to hold the office to which he is declared elected. If it appears that two or more persons have, or would have had,

Contesting Elections of Members of Legislature, Chancellor, Circuit Judge, Etc. if the ballots intended for them and illegally rejected had been received, the highest and equal number of votes for such office, judgment must be rendered declaring the fact, and such fact must be certified to the officer having authority to fill vacancies in the office the election to which was contested. If the person whose election is contested is found to be ineligible to the office, judgment must be rendered declaring the election void, and the fact certified to the appointing power. If the party whose election is contested is found to have been duly and legally elected, judgment must be rendered declaring him entitled to have and to hold the office to which he was so elected.

475. (1701) Contest not abated by death of contestant.-In all contests of elections, such contests are not abated by the death of the party commencing them before final judgment, if any qualified elector appears in court and substitutes himself as contestant, and gives good and sufficient security for the costs which have accrued or may accrue on the contest. But if no qualified elector appears and proposes to substitute himself as the party contesting, the contest abates on the death of the contesting party, and judgment must be rendered against his sureties for the costs of the contest, which must be collected by execution in the name of the party whose election was contested. In all cases the person whose election is contested, if he be the successful party in such contest, is entitled to judgment for the costs thereof against the party contesting and his sureties, for which execution may issue returnable to the court of probate, or to the court of chancery or to the circuit court, as the case may be.

476. (1702) Appeals. In all contested elections before the judge of the probate court an appeal lies to the supreme court within five days after the rendition of the judgment. From the judgment or decree of the chancellor on the contest of an election of the judge of the circuit court, an appeal lies to the supreme court which must be taken within five days after the rendition of decree or judgment. From the judgment of the circuit court on the contest of an election of a chancellor or of a judge of probate, an appeal lies to the supreme court within five days after the rendition of the judgment.

477. (1703) Costs of appeals.-On the taking of an appeal as provided in the preceding section, the appellant must give bond and security for the costs thereof to be approved by the judge of probate, register, or clerk of the circuit court, as the appeal may be taken from the judgment of the judge of probate, chancellor, or circuit court; and the appeal bond must be certified with the record to the appellate court. And if judgment be rendered confirming the judgment of the judge of pro

Contesting Elections of State Officers.

bate, or of the chancellor, or of the circuit court, the supreme court must render judgment against the appellant and his sureties for the costs. An appeal in any and all cases suspends the execution of the judgment or decree of the judge of probate, of the chancellor, or of the circuit court.

478. (1672) Contest of state office; statement; bond.-When (r.c.c.) any elector shall choose to contest any election for the office of governor, secretary of state, state auditor, state treasurer, attorney-general, superintendent of education, commissioner of agriculture and industries, justices of the supreme court, supernumerary judge, the state game and fish commissioner, he must, within ten days after the speaker of the house of representatives shall have opened the returns and proclaimed the result of the election for governor, secretary of state, state auditor, state treasurer, and attorney-general, as provided in this chapter, file with the speaker of the house of representatives a written statement of the grounds of such contest and a bond with good and sufficient sureties payable to the State of Alabama and conditioned for the payment of such costs as may accrue upon such contest in the event such contest shall result in favor of the contestee. Such bond must be in the sum of five thousand dollars, and must be subject to the approval of the speaker of the house, and such bond, when it shall be approved, shall be filed and recorded in the office of the secretary of state.

Origin and history of statute.-Toulmin's Digest, pp. 266–288. (Feb. 16, 1895, p. 757, § 3.) Bonds for contest elections; actions on such bonds.-McWhirter v. Frazier, 129 Ala. 450 (29 So. 445).

479. (1673) Same; contents of statement; verification; service; amendments.-The written statement of the grounds. of contest must set forth specifically

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Contesting Elections of State Officers.

1. The name of the person contesting, and that he was a qualified voter when the election was held.

2. The office which said election was held to fill, and the time of holding the same.

3. The particular grounds of the contest. The statement shall set forth the name of the counties in which any of the alleged grounds of contest may have occurred, and shall state with particularity the names of the election precincts in each of such counties in which the grounds of contest may be alleged to have occurred. The statement must set out with particularity the grounds on which the declared vote of each of the named election precincts in each county is contested. Such statement of the grounds of contest must be sworn to by the elector making the contest before some officer authorized to administer oaths in the State of Alabama, and may be amended from time to time as may be determined by the two houses of the legislature in joint convention assembled. The speaker of the house shall cause the clerk of the house forthwith to serve a copy of the statement on the person who may have been declared to have been elected to the contested office.

(Feb. 16, 1895, p. 757, § 4, et seq.)

480. (1674) Tried by joint convention of house and senate.— The two houses of the legislature, in joint convention assembled, and presided over by the speaker of the house of representatives, shall constitute the tribunal for the trial of all contests for the office of governor, secretary of state, state auditor, state treasurer, attorney-general, superintendent of education, or commissioner of agriculture and industries, justices of the supreme court, supernumerary judge, and state game and fish commissioner, and such joint convention shall fix a day for the trial, which may be adjourned from day to day, and from time to time, as may be determined by the joint convention. A majority of the joint convention shall be competent to try all issues involved in the contest and render judgment on all questions arising during the progress of the trial, including a final judgment on the contest. The proceedings of the joint convention, as well as all judgments rendered, shall be entered upon the journals of the senate and the house of representatives, and the final judgment of the joint convention upon the contest shall thereupon become effective as a judgment, and shall have the force and effect of vesting the title to the office, which may be the subject of contest in the person in whose favor the judgment may be rendered.

481. (1675) Commission elected to take testimony.-When any contest shall have been commenced under the provisions of this Code for any of the officers mentioned in the preceding