Ray v. Garner

• Citation: 257 Ala. 168,57 So.2d 824
• Decision Date: 27 March 1952
• Docket Number: 6 Div. 403
• Parties: RAY v. GARNER.
• Court: Supreme Court of Alabama

Page 824

57 So.2d 824

257 Ala. 168

RAY v. GARNER.

6 Div. 403.

Supreme Court of Alabama.

March 27, 1952.

Harold M. Cook, Birmingham, and Geo. A. LeMaistre, Gordon Madison and Jas. J. Mayfield, all of Tuscaloosa, for appellant.

Horace C. Wilkinson and Maurice F. Bishop, Birmingham, for appellee.

SIMPSON, Justice.

Appeal from a judgment of the circuit court of Jefferson County, Alabama (Judges McElroy and Windham, sitting), denying appellant's petition for a writ of mandamus to require the appellee, as judge of probate of said county, to have printed on the official ballot for the coming Democratic primary elections to be held May 6 and June 3, 1952, the voter pledge prescribed by the resolution of the State Democratic Executive Committee adopted January 26, 1952.

The pledge reads: 'By casting this ballot I do pledge myself to abide by the result of this Primary Election and to aid and support all the nominees thereof in the ensuing General Elections. I do further pledge myself to aid and support the nominees of the National Convention of the Democratic Party for President and Vice-President of the United States.' (Emphasis supplied.)

The argument seems to assume that the real question concerns the validity and effect, vel non, of that feature italicized above which provides that to entitle one to vote in such primary elections, he must not only agree by participating in said primary elections to abide by the result and to aid and support the nominees thereof in the ensuing general election, but also to aid and support the nominees of the National Convention of the Democratic Party for President and Vice-President. It is this latter feature of the pledge which has invoked this litigation and which the lower court held could not be required of the probate judge to have printed on the official ballot.

Specifically, the statute, Title 17, § 350 prescribes the voter pledge to be printed on the official ballots and § 352 prescribes the form in which the ballots shall be substantially printed. Said § 350 stipulates that at the bottom of the ballot shall be printed the words: 'By casting this ballot I do pledge myself to abide by the result of this primary election and to aid and support all the nominees thereof in the ensuing general election' (identical in language of the first clause of the text quoted above).

The essence of the holding of the lower court was that the respondent judge could not be required to vary the language of the voter test because the statutory one is exclusive. We affirm the judgment denying the writ on the basis of the considerations later to be noted.

In view of the argument of counsel and the oral statement of the court below when rendering the judgment, we think it proper to preface decision by adverting to certain well-settled principles of law in connection with the very pertinent observation that decision does not of itself turn upon the authority of the State Committee to pass the test resolution or the binding effect of that pledge on the voter. The narrow question is whether or not the judge of probate can be required to have printed on the official ballot a voting test other than that as prescribed by law. As stated, we hold that he cannot be, although, as we will show, we do not think the printing of the full pledge required by the Committee resolution would in any way invalidate the ballot.

General Principles

The State Executive Committee of a party has full right, power and authority to fix and prescribe the political and other qualifications of its own members and to determine who shall be entitled and qualified to vote in primary elections or be candidates or otherwise participate therein, Title 17, § 347, Code 1940; Smith v. McQueen, 232 Ala. 90, 166 So. 788; 29 C.J.S., Elections, § 87, P. 120, just so such Committee action does not run afoul of some statutory or constitutional provision. Ray v. Blair, Ala.Sup., 57 So.2d 395; Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987, 151 A.L.R. 1110. We see nothing in Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984, 88 A.L.R. 458, contrary to this principle. See 286 U.S. at page 88, 52 S.Ct. at page 487, 88 A.L.R. at page 464.

And subsumed under this general principle is the well-nigh universal concept that 'a test by a political organization of party affiliation and party fealty is reasonable and proper to be prescribed for those participating in its primary elections for nomination of candidates for office', Lett v. Dennis, 221 Ala. 432, 433, 129 So. 33, 34, and in Alabama this prerogative is vested in the State Party Executive Committee, acting through its duly elected or chosen members. Smith v. McQueen, supra.

There are other pertinent facets of the general principle which are also of material consideration: (1) The State Executive Committee of a party may exclude from party action all persons save those holding a present party allegiance and having a bona fide present intention to support the party nominees, unless there be some statutory or constitutional interdiction to the contrary. (2) Every participant in a party primary election obligates himself to support the party nominees, even though such support be not expressly pledged or promised, such obligation inhering in the very nature of his act, regardless of any express pledge or requirement of statute, although being unenforceable through the courts because it is merely a moral obligation, binding no longer than it could be conscientiously performed. State ex rel. Adair v. Drexel, 74 Neb. 776, 105 N.W. 174; Love v. Buckner, 121 Tex. 369, 49 S.W.2d 425; Chapman v. King, 5 Cir., 154 F.2d 460, 462. (3) The printed test on the ballot is for information to the voter as to the effect of his voting, but it is the act of voting which creates the pledge. And with respect to the case in hand, there is nothing in the pledge prescribed by the resolution which violates any statute or constitutional right and the party committee was clearly within its authority to pass the resolution so providing; and while the statute is specific as to what shall be printed on the ballot, § 350, supra, there is nothing prohibitory to printing other words which would convey full information to the elector as to the nature and effect of his voting. We deduce, therefore, that had the judge of probate elected to have printed on the ballot the entire voter test proposed by the resolution, the ballot would not thereby be invalidated. (4) Primarily, the pledge must be germane to party membership and party elections and, while the last...