Boswell v. Bethea

• Decision Date: 29 January 1942
• Docket Number: 6 Div. 792.
• Citation: 242 Ala. 292,5 So. 2d 816
• Parties: BOSWELL v. BETHEA et al.
• Court: Alabama Supreme Court

5 So.2d 816

242 Ala. 292

BOSWELL v. BETHEA et al.

6 Div. 792.

Supreme Court of Alabama

January 29, 1942

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge

The petition or bill filed by appellant in the Circuit Court is as follows:

"Petition.

"To the Honorable Judge or Judges of Said Court:

"Your Petitioner, William Boswell, respectfully represents unto your honor as f ollows:

"1.That he is a bona fide resident citizen of Jefferson County Alabama and is over twenty-one years of age.

"2.That he is a citizen of the United States, has resided in the State of Alab ama for more than two years, in the county of Jefferson for more than twelve mo nths in the 9th precinct of Jefferson County, Alabama for more than three month s immediately next preceding the filing of his application for registration on the 31st day of January 1940.

"3.That he is able to read and write any article of the Constitution of the Un ited States in the English language and that he has been regularly employed for the greater part of the twelve months next preceding the time he offered to register.

"4.That he has never been adjudged guilty of a felony or any crime, that your petitioner further avers that he is not an idiot or insane.Petitioner further alleges that by reason of the allegations hereinbefore made, he was in all particulars on the 31st day of January, 1940 a duly qualified elector of the said State of Alabama according to the laws of the State and as such was entitled to be registered as such elector.

"5.Your petitioner further shows that under the provisions of the laws of the State of Alabama, the Board of Registrars duly appointed, qualified to register qualified electors composed of Rufus Bethea, Sterling J. Foster and Herman A. Whisenett held sessions at the Court house of said County for the purpose of registering all applicants who were duly qualified, and that during the session and on the 31st day of January, 1940, when said Board was in session as provided by the laws of the State of Alabama, your petitioner made proper legal application to the said Board to register as an elector.That said board during such registration period, declined and refused to register your petitioner.

"6.Petitioner further states that during such registration period the said Board of Registrars has unlawfully combined, confederated and conspired together, and have formulated and devised various schemes and plots whereby they have prevented and still prevent the Negro residents of Jefferson County, including your petitioner, from being registered; and petitioner further states that as a result of said conspiracy, it has become the general, habitual and systematic practice of said Board of Registrars, including these respondents and their predecessors in office to refuse to register Negro Residents of said Jefferson County, including your petitioner, William Boswell, and to deprive them of their rights of suffrage solely on account of race, color and previous condition of servitude.

"7.That as a part and parcel of the conspiracy of the aforesaid Board of Registrars and in furtherance thereof, the said Board of Registrars invented, devised and set in motion and operation various schemes tricks and artifices and have used every subterfuge to prevent the registration of Negroes and to deprive them of their fundamental and constitutional right of suffrage, to wit said Board of registrars would conduct examination of Negro applicants, including your petitioner, behind closed doors, said examination consisting of extraneous and irrelevant questions not pertaining to the qualifications of an elector.That even after admitted satisfactory answers to such questions the said Board would arbitrarily refuse to register Negro Applicants, including your petitioner.

"8.Further, that said Board of Registrars in its refusal to register your petitioner was acting under color of custom and usage in said Jefferson County and State of Alabama, that such refusal to register your petitioner is contrary to the provisions of the Constitution of the State of Alabama and violates the rights of your petitioner under the Constitution of the State of Alabama and under the Constitution of the United States and the 14th and 15th amendments thereto and the laws of the United States enacted pursuant thereto.

"9.Petitioner appeals from the decision of the Board of registrars in denying him registration, under Section 384 of the Alabama Code of 1928, that his qualifications to register may be determined by a jury.

"Premises considered your petitioner prays that this Court will allow his appeal, and that the question of his right to register as a qualified elector of the State of Alabama be adjudicated, and for such other and further relief as your Honor may think proper.

"Arthur D. Shores,

"Attorney for Petitioner.

"Note: Petitioner demands a jury for the trial of the above styled cause.

"Arthur D. Shores,

"Attorney for Petitioner."

The following are grounds of the demurrer interposed to the petition by respondents:

"6.The averment in the petition that the petitioner was in all particulars, on the 30th day of January, 1940, a duly qualified elector of the State of Alabama, according to the laws of the State, and as such was entitled to be registered as such elector is a conclusion of the pleader, and no sufficient facts are averred to support said conclusion.

"7.

It affirmatively appears from the petition that petitioner was, on the 30th day of January, 1940, a duly qualified elector of the State of Alabama, and, f or aught appearing in the petition, the petitioner was a duly qualified elector of Jefferson County, Alabama, so that to have then registered petitioner would have involved a double and unlawful registration of petitioner in Jefferson Co unty, Alabama.

"8.The averments in the petition that the petitioner made proper legal applica tion to the Board of Registrars to register is a conclusion of the pleader, and no facts are sufficiently averred to show that the alleged application to regi ster was a proper and legal application."

Arthur D. Shores, of Birmingham, for appellant.

Thos. S. Lawson, Atty. Gen., and John W. Vardaman, Asst. Atty. Gen., for appellees.

THOMAS, Justice.

The question presented is the right of appeal from the ruling of the Board of Registrars of Jefferson County.By petition appellant sought to register to vote in Jefferson County Alabama, and have his qualifications as such alleged elector determined by the said Board of Registrars.State v. Crenshaw,138 Ala. 506, 35 So. 456;Skinner's Alabama Constitution Annotated, Art. 8, § 186, subsection 6th, p. 676, Const. 1901, § 186, subd. 6;Code 1940, Tit. 17, § 35.

Appellant's petition to register is challenged by demurrer, which is in accord with the rules that prevail for testing such pleading.49 Corpus Juris, § 132;Beatty v. Hartwell,217 Ala. 239, 115 So. 164;Tutton v. Liverpool & London & Globe Ins. Co., Ltd., 237 Ala. 230, 186 So. 551.

The well-established rule is stated in Fife v. Pioneer Lumber Co.,237 Ala. 92, 185 So. 759, 760, that, "Where some of several grounds of demurrer are sufficient, and judgment sustaining demurrer is general, the ruling will be referred to a ground that is well taken."

It is insisted by the attorney general that the trial court correctly sustained demurrers to the petition in the cause for the reason that such initial pleading failed to show that petitioner was not already a registered elector of Jefferson County.Petitioner also fails to show, except by conclusion, that a proper application was made to the board of registrars, and on what facts or qualifications he based his petition, merely alleging that he made a "proper legal application to said board."These defects are specifically pointed out by appropriate grounds of demurrer.Objections to the sufficiency of the pleading were sustained by the trial court.

The insistence of appellant is that a pleading which, with all reasonable inferences in favor of the pleader, shows facts entitling him to relief, is not subject to demurrer.Birmingham Railway, Light & Power Co. v. Hunnicutt, 3 Ala.App. 448, 57 So. 262;Hayes v. Miller,150 Ala. 621, 43 So. 818, 11 L.R.A.,N.S., 748, 124 Am.St.Rep. 93;Barnett v. Freeman,197 Ala. 142, 72 So. 395;Alabama Fuel & Iron Co. v. Bush, 204 Ala. 658, 86 So. 541;Woodstock Iron Works v. Stockdale,143 Ala. 550, 39 So. 335, 5 Ann.Cas. 578;Kennon v. Western Union Telegraph Co.,92 Ala. 399, 9 So. 200.

The rule that obtains in this jurisdiction as to good pleading in civil cases is stated in Alabama Fuel & Iron Co. v. Bush, 204 Ala. 658, 86 So. 541, 542, supra, as follows: "Cardinal rules of pleading are that the matter pleaded or facts alleged must be (1) sufficient in law to avail the party who pleads it, and (2) alleged or deduced according to the forms of law.Will's Gould on Pleading, pp. 2, 3, 192, 361.A cause of action is made up of a duty and its breach.The duty--the relationship from which the duty springs--must be shown by the facts alleged; and the breach of the duty may be averred by way of a conclusion. * * * "

The rule of pleading conspiracy in a civil case, and adverted to in this case, is as follows (National Park Bank v. Louisville & N.R.R.Co., 199 Ala. 192, 199, 74 So. 69, 73): " * * * The acts complained of, however, must be definitely and accurately stated, so that, if the facts themselves should be admitted the court can draw a legal conclusion therefrom--thus the illegal purpose or means, which the conspirators meant to accomplish or to resort to, must be described accurately, for unless the object is illegal, or the means agreed upon are illegal, there is no actionable wrong....