This appeal is from the order of the circuit court denying the complainant's application for a temporary injunction, sustaining the defendants' demurrer, and dismissing the bill. Among other grounds of demurrer sustained is the general demurrer going to the equity of the bill.
The bill is filed by a resident taxpayer of Jefferson county, seeking to restrain the defendants — the judge of probate, the clerk of the circuit court, and the county treasurer — from exercising their statutory powers and discharge the duties imposed upon them by the primary election laws (Code, §§ 437, 613, 616) — the judge of probate and the clerk of the circuit court from appointing inspectors and clerks for the several election precincts (Code of 1923, §§ 437, 613, 616) — the probate judge from procuring the necessary "election supplies" (Code, § 625) — and the treasurer from paying any expense incurred in respect to the holding of the primary election for the nomination of candidates by the Democratic Party for state, federal, district, party, and county offices, called by a resolution of the State Democratic Executive Committee, for nomination of state, federal, district, and party candidates, and by the county committee for the nomination of county candidates.
The equity of the bill, stated in the language of the pleader, is rested upon the following grounds: The resolution adopted by the State Democratic Executive Committee is "illegal, unconstitutional, null and void, for the following, among other reasons, separately and severally, that is to say: *Page 256
"(1) Because the qualifications of electors entitled to vote in said proposed primary have been fixed by the committee different from the qualifications of candidates for nomination to State, Federal, Circuit and District offices and places on the State Executive Committee, contrary to the statutes of Alabama regulating primary elections, or
"(2) Because the State Executive Committee has illegally attempted to authorize the several county executive committees of the several counties in Alabama to fix the political qualifications of candidates for nomination to county offices in said primary, or,
"(3) Because the political qualifications prescribed for candidates for State, Federal, Circuit and District Offices, and membership on the State Executive Committee, or,
"(4) Because the State Executive Committee has illegally disqualified a large number of persons in said county from becoming candidates in said primary for nomination to State, Federal, District and Circuit offices, and membership on the State Executive Committee, or,
"(5) Because the resolution of the State Executive Committee violates the constitutional guarantee against retrospective laws.
"(6) Because the political qualifications prescribed by the State Executive Committee for candidates for State, Federal, Circuit and District offices, as also membership on the State Executive Committee, are arbitrary, unreasonable, illegal and beyond the power of said Committee to impose."
That the resolution being void, the proposed election is illegal, and it would be a misappropriation of public funds to allow the expenses incident thereto to be paid by the county.
Looking through mere form to substance, as it is the court's duty to do (Fairclough v. St. Amand, 217 Ala. 19, 114 So. 472), the major purpose of the bill is to enjoin the primary election, an election that is purely political, and the alleged threatened illegal expenditure of public funds is a mere incident in which the complainant has no interest, special or peculiar, differing in kind from the interest of all other taxpayers.
We are confronted at the very threshold of the case with the question of jurisdiction of a court of equity to interfere in such matters, and it is of no consequence that the parties have not stressed the point, and invite the court to consider the case on what they consider to be its merits. The question of jurisdiction is always fundamental. It would amount to usurpation and oppression for a court to interfere in a matter over which it has no jurisdiction, and its pronouncements in respect thereto would be without force, and its decrees and judgments would be wholly void. This is a universal principle, as old as the law itself; hence the question of jurisdiction is a question of primary importance in every case, and, if there is an absence of jurisdiction over the subject-matter, this ends the inquiry; it cannot be waived or supplied by consent. 7 R.C.L. 1029, §§ 57, 59, and 70; Power, Secretary of State, v. Ratcliff et al., 112 Miss. 88, 72 So. 864, Ann. Cas. 1918E, 1146; McAlester v. Milwee, 31 Okl. 620, 122 P. 173,40 L.R.A. (N.S.) 576.
Professor Pomeroy, in his work on Equity Jurisprudence, recognized as an authority in all jurisdictions, states the rule thus: "An injunction will not issue, as a general rule, for the purpose of restraining the holding of an election, or directing or controlling the mode in which, or determining the rules of law in pursuance of which, an election shall be held. An election is a political matter, with which courts of equity have nothing to do. Moreover, the effect of interference in such matters might often result in the destruction of the government. This is especially so when the relief is sought to prevent the holding of an election. 'The attempt to check the free expression of opinion — to forbid the peaceable assemblage of the people — to obstruct freedom of elections if successful, would result in the overthrow of all liberty regulated by law. The mere effort to assume such power is dangerous to the rights of the citizen. If the courts can dictate to the officers of the people that they shall not hold an election from fear of some imaginary wrong, then people and officers are entirely subservient to the courts, and the consequences are too fearful to contemplate. Thus, an injunction will not issue to restrain the holding of an election although it is alleged that it is without authority of law, or that the act authorizing it or providing for apportionment is unconstitutional. And the mere fact that the cost of the election will have to be borne by the state and indirectly by the tax-payers is no ground for an injunction at the relation of a tax-payer for the injury is too trifling." 4th Edition Pomeroy's Equity Jurisprudence, vol. 4, § 1753, *page 4067.
Again, to quote from 10 Ruling Case Law, page 342, § 92: "Matters of a political character are also outside the pale of a court of equity, no such jurisdiction having ever been conceded to a chancery court, either in a federal or state judiciary, unless it is so provided expressly or impliedly by organic or statute laws. The political rights of a citizen are as sacred as are his rights to personal liberty or property, but he must go to a court of law for them. A court of equity is a one-man power, wielding the strong force of injunction, often issued at chambers, and on ex parte hearing. Neither in England nor America has this power been suffered to extend to political affairs." This text is supported *Page 257 by a host of authorities cited in note 9, among others Giles v. Harris, 189 U.S. 475, 23 S.Ct. 639, 47 L.Ed. 909, which involved the validity of the article on suffrage in the AlabamaConstitution of 1901.
There is an absence of constitutional provisions or statute laws conferring jurisdiction on courts of equity in this state to inquire into or enjoin elections of any sort, and, while it must be conceded that the election involved in this case does not fall within the provisions of section 549 of the Code, as that section has been construed and applied in the recent case of Dennis et al. v. Prather et al., 212 Ala. 449, 103 So. 59, still this section evinces a legislative policy that excludes the idea of establishing jurisdiction in courts of equity to enjoin elections by implication, where property or contract rights are in no way involved. This section (549) provides: "No jurisdiction exists in or shall be exercised by any judge, court or officer exercising chancery powers to entertain any cause or proceeding for ascertaining the legality, conduct or results of any election, except so far as authority to do soshall be specially and specifically enumerated and set down bystatute," etc. (Italics supplied.)
High on Injunctions (4th Ed.) vol. II, § 1316, page 1333, states the rule to be that "Equity will not enjoin the holding of an election for a public office at the suit of citizens and electors who fail to show in what manner they will be injured by such election, either in person or property. Plaintiffs, in such case, are to be regarded as mere volunteers, having no right to invoke the extraordinary aid of equity in a matter in which they have no interest other than that which is common to the public at large. And such a case may be regarded as analogous to that of private citizens attempting to enjoin a public nuisance without showing some special injury, peculiar to themselves, and aside from the general injury to the public. Indeed, a still broader doctrine has been asserted and it has been held that, the power of holding an election being a political power, equity has no jurisdiction to restrain officers intrusted by law with the duty of holding elections from the exercise of such power." The first part of this text is rested upon a decision of this court, rendered more than a half of a century ago, the soundness of which has never been questioned. Jones v. Black, 48 Ala. 540. And the proposition set down in the last part of this text is sustained by the great weight of authority. McAlister, Secretary of State Education Board et al., v. State ex rel. Short, Attorney General, 95 Okl. 200, 219 P. 134, 33 A.L.R. 1370, and note beginning on page 1376.
The principle is applicable alike to general and primary elections. Meacham v. Young et al., 115 Ky. 246, 72 S.W. 1092,1094, 24 Ky. Law Rep. 2141; Neal et al. v. Young et al., 75 S.W. 1082, 25 Ky. Law Rep. 183.
The election brought in question in Dennis et al. v. Prather et al., supra, was not only not authorized by law, but was prohibited by the statute, and involved not only the costs of the election, but the abandonment of county property, and the cost of building new county buildings, for which purpose the levy of a special tax was authorized, Code 1923, § 212; and the bill was filed "by John Prather, a taxpayer, and the board of revenue of the county." See County of De Kalb v. City of Atlanta, 132 Ga. 727, 65 S.E. 72.
In Petree v. McMurray, 210 Ala. 639, 98 So. 782, McMurray was the county superintendent of education, having been appointed for a term of two years, and, under the provisions of Const. 1901, § 175, was entitled to hold for the term and could not be removed therefrom except by impeachment. The equity of the bill in that case rested on the well-settled principle that a court of equity has jurisdiction to protect an incumbent in office who shows a prima facie right to continue therein. Wright et al. v. Cook et al., 216 Ala. 270, 113 So. 252.
In City of Mobile v. Mobile Electric Co., 203 Ala. 574,84 So. 816, contract rights were the subject of the litigation, and it was expressly pointed out that the election was not a political one.
In Coleman et al. v. Town of Eutaw et al., 157 Ala. 327,47 So. 703, the bill was to enjoin the issuance of municipal bonds, the election authorizing such issuance having been held. The equity of the bill was rested upon the jurisdiction of equity to prevent the abuse of corporate power and keep municipal corporations within subjection to the law. The jurisdiction in such case is well established. New Orleans, Mobile Chattanooga R. Co. v. Dunn et al., 51 Ala. 128; Gillespie et al. v. Gibbs, 147 Ala. 449, 41 So. 868; Inge et al v. Board of Public Works of Mobile, 135 Ala. 187, 33 So. 678,93 Am. St. Rep. 20.
The same principle applies to counties in the exercise of their corporate functions as municipal corporations. Kumpe et al v. Bynum et al., 158 Ala. 311, 48 So. 55.
While the statutes impose upon the several counties of the state the financial burden of paying the expenses incident to general elections and general primary elections (Code 1923, §§ 481, 509, 609), the county in its corporate capacity has no function to perform in respect to such elections. The statutes are a mere legislative apportionment of the burden of government in applying the police power, and the officers named in the statutes as the board to appoint the election inspectors and clerks, and to supply the necessary election supplies and pay therefor, are but agencies of the state, designated and empowered by the Legislature to carry into effect the *Page 258 state's policy in respect to such elections, and the rule of the great weight of authority is that a court of equity is without jurisdiction to control such officers in the exercise of their statutory authority in respect to political elections at the suit of a taxpayer who shows no special injury peculiar to himself. 32 C.J. 254, § 400; 4 Pom. Eq. Jurisprudence, §§ 1746, 1748, 1754; Power, Secretary of State, v. Ratliff et al.,112 Miss. 88, 72 So. 864, Ann. Cas. 1918E, 1146.
What we have said is sufficient to indicate that we are of opinion that the bill is without equity, and the decree of the circuit court denying the injunction, sustaining the demurrer, and dismissing the bill is free from error.
Affirmed.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.
THOMAS, J., dissents.
SAYRE and BOULDIN, JJ., not sitting.