Bridges v. McCorvey, 4 Div. 623
| Decision Date | 14 December 1950 |
| Docket Number | 4 Div. 623 |
| Citation | 254 Ala. 677,49 So.2d 546 |
| Parties | BRIDGES et al. v. McCORVEY et al. |
| Court | Alabama Supreme Court |
Roy L. Smith, of Phenix City, Chas. L. Rowe, of Elba, G. D. Halstead, of Headland, Wm. M. Beck, of Fort Payne, and Rives & Godbold, of Montgomery, for appellants.
Wm. S. Pritchard, Victor H. Smith and Pritchard & McCall, all of Birmingham, for appellees.
Appeal by petitioners in a proceeding wherein they sought a writ of prohibition and other relief to prevent H. M. Abercrombie, William E. Johnson, H. Coleman Long, J. Herbert Meighan, and Frank J. Mizell, Jr., as members of a subcommittee of the State Democratic Executive Committee of Alabama, from hearing and determining a contest of the election of petitioners as members of the State Democratic Executive Committee from the third congressional district of Alabama. Also made defendant to the petition was Gessner T. McCorvey, as chairman of the State Democratic Executive Committee of Alabama. On a final hearing in the court below, the Honorable Bowen W. Simmons, acting judge of the circuit court of Coffee County, denied relief. It is from this judgment that the appeal is prosecuted.
Two opinions have heretofore been promulgated in this matter, the first being Exparte May, 253 Ala. 684, 46 So.2d 836, where this court held that paragraph 14 of the petition for writ of prohibition constituted sufficient basis to invoke the jurisdiction of the court, on the theory that: 'The circuit courts of this state have jurisdiction to issue writs of prohibition to prevent the executive committees of political parties and the sub-committees thereof from proceeding in election contests, where such committees or sub-committees do not have jurisdiction to hear and determine such contests * * *.' Citing Ex parte State ex rel. Bragg, 240 Ala. 80, 197 So. 32.
The second opinion is reported as Ex parte May, Ala., 47 So.2d 640, where the first decision was reaffirmed.
Said paragraph 14 of the petition was to the effect that the statements of contest were not duly filed by the contestants with the chairman of the State Democratic Executive Committee of Alabama and the required sum to cover the cost and expense of said contest was not deposited with the said chairman within fifteen days after the result of said primary election had been declared. Evidence on this issue was without substantial conflict and the lower court, after hearing the same ore tenus, very properly decided that the petitioners had failed to sustain the allegations and denied relief. This appeal cannot seriously challenge the stated ruling, but it is contended that the subcommittee appointed by the chairman of the State Committee to hear and decise the election contests was without jurisdiction and should be restrained from proceeding because allegedly: (1) There is no authority of law or rule of the committee authorizing a contest of the election of a member of the State Democratic Executive Committee; (2) the chairman was without authority to appoint the subcommittee because there was no valid statute, rule or regulation authorizing him so to do; (3) that the subcommittee had no jurisdiction to hear and determine the said election contest because the members of the subcommittee are biased against the petitioners (contestees) in that each of them campaigned against the petitioners and that Mr. Abercrombie, the chairman, had previously expressed his opinion that the elections for members of the State Democratic Executive Committee in the third congressional district (petitioners' district) were fraudulent and the results of said elections should be discarded.
These several propositions had our studious consideration when the two former opinions were delivered, but we did not write to them. We will now, however, treat of them in order.
(1)
It is first contended that there is no provision of law or party rule for the contest of the election of a person to membership on the State Democratic Executive Committee, the argument being that only contests for nominations are provided for and that the petitioners were not nominated, but were elected to a party office. This argument is taken from a construction placed by appellants on certain sections of the statute providing for contests in primary elections, such as §§ 373, 374, 375, 378, 380, 384, 387, and 388, Title 17, Code 1940, which speak of contests of nominations of a person, rather than using the term election. We have consistently thought this theory to be unsound.
Section 341 provides that selection of members of the state executive committee of a party may be done in such manner as the governing authority of the party shall provide, and in the instant case the State Democratic Executive Committee, which is the governing authority of a party, did by resolution provide for the selection of its members in the Democratic primary. The contest is thus governed by the provisions of Title 17. But so also does the same title provide for the selection (nomination) of the members of the party to run for office in the general election.
A candidate seeking nomination of a party to run for a state or county office is a candidate for a party office and, when nominated, has a status as a quasi officer. Boyd v. Garrison, 246 Ala. 122, 19 So.2d 385(3); 18 Am.Jur. 285, § 157. Executive committeemen of a party, when elected as such in the primary, are also party officers. 18 Am.Jur. 271, § 139.
Section 373, Title 17, provides for the contest of nominations of candidates for county offices to be heard and determined by the county executive committee as to such offices and by the state committee 'as to candidates for all other offices'. This section, like others, such as §§ 378 and 384, therefore undoubtedly refers to all party offices. So when § 372 confers on the state committee the right to hear and determine contests regarding candidates in primary elections for all offices voted for in that election, except candidates for county offices, it necessarily includes candidates for the party office of membership on the state committee voted for in the primary election, pursuant to the provisions of the resolution of the state committee calling the primary and specifying the offices to be filled.
'Nomination' and 'election' seem to be used interchangeably throughout the many pertinent sections, as the nature of the office might require, without recognizing a distinction in meaning. § 412 as to words and phrases in the statute indicates such a purpose. And to confine contests under § 384 to those selected in a primary to run for an office in the general election is too restrictive to meet with favor. § 394 itself makes provision for the appointment of a subcommittee as was done in this case, with authority, among other things, 'to hear, consider and decide any contest of any election or of the nomination of any candidate in any election held under this chapter'. (Emphasis supplied.)
It seems most evident the statute, in providing for contests in primary elections of all offices, includes not only nomination of candidates of the party for state office, but also those who are named to fill any other party office, including that of executive committeeman. Another section which could be mentioned is § 336, which states, 'A primary election, within the meaning of this chapter, is an election held by the qualified voters, who are members of any political party, for the purpose of nominating a candidate or candidates for public of party office.'
To rationalize further, one elected in a primary election to membership on the state executive committee is a person who has been named or nominated to that party office. To nominate is to name (Webster), either by election or in a convention or some other way; and to elect to an office is to name one in an election for that office. Primary elections are to name by election persons to party offices, whether they are candidates of the party for office or named to some other party office. The ratio decidendi of Smith v. McQueen, 232 Ala. 90 (3, 4), 166 So. 788, furnishes an apt analogue, where it was said that, while 'electio...
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