Bryce v. Burke

• Decision Date: 18 May 1911
• Citation: 172 Ala. 219,55 So. 635
• Parties: BRYCE v. BURKE, PROBATE JUDGE.
• Court: Alabama Supreme Court

55 So. 635

172 Ala. 219

BRYCE v. BURKE, PROBATE JUDGE.

Supreme Court of Alabama

May 18, 1911

On Rehearing, June 8, 1911.

On Rehearing.

Appeal from Circuit Court, Cullman County; D. W. Speake, Judge.

Petition by C. W. Bryce for mandamus against R.I. Burke, Judge of Probate, requiring him to certify his incompetency to try a certain contested election. From an order denying the writ petitioner appeals. Reversed and remanded.

The petition alleges, in effect: That the petitioner was a qualified elector of Cullman county, Ala., and was the Democratic nominee for sheriff of that county at the election held on the 8th day of November, 1910. That the votes at said election were properly canvassed, and that petitioner was declared elected sheriff of Cullman county, and was duly commissioned thereto. That C. C. Scheuing was the nominee of the Republican party in said election for the office of sheriff, and had filed a statement of contest with the said R.I. Burke, judge of probate, seeking to contest the petitioner's election to the said office of sheriff. That within the time prescribed by law petitioner filed his answer to said contest, a copy of which was attached to the petition and made a part thereof. That, as appeared from the examination of said statement of contest, and the answers thereto, the issues therein presented involved charges of fraud, committed by the said R.I. Burke as judge of probate in connection with said election, for the purpose of procuring the defeat of petitioner and the election of said Scheuing, which it was alleged had the effect to prevent any fair and free exercise of the elective franchise. That the probable and natural tendency of said charges, which were a part of the issues in said cause and material to its determination, would have a natural tendency to create bias and prejudice in the minds of said judge of probate against the petitioner in the trial of said issue, and by reason thereof he was rendered incompetent under the law to sit in judgment in the trial of said contest. Then follows a catalogue of the acts and doings of the judge of probate relative to said election, the material part of which is set out in that part of the answer copied in the opinion.

J. B Brown and F. E. St. John, for appellant.

Kyle &amp Hutson, for appellee.

SAYRE J.

Bryce was a candidate for the office of sheriff of Cullman county at the election held November 8, 1910, was declared to have received a majority of the votes, and received a certificate of his election. Thereafter Scheuing, who had been a rival candidate for the office, set on foot a contest before the Honorable R.I. Burke, judge of probate for said county. The contest proceeded upon various grounds. Paragraph 7 of the statement of grounds of contest was as follows:

"(7) On account of the reception of illegal votes in precinct 12 in this county, in this: That said managers or inspectors allowed or permitted about thirty (30) persons to vote illegally in said election, by permitting said persons to vote an illegal and unofficial ballot, in that the ballots so voted were written in ink or pencil, and not printed and distributed as prescribed by law; that about 20 of said illegal ballots were cast and counted for contestee, and contestant avers that if the number of said illegal votes given to contestee, the said C. W. Bryce, by reason of the casting and counting of said written ballots for the said Bryce, be taken from him, would reduce the number of legal votes given to him below the number of legal votes given to contestant for said office of sheriff. Contestant asks a recount of said vote in said precinct."

Answering, the contestee averred:

"Contestee denies the averments of paragraph 7, and alleges the truth to be that in said election the said contestant was a candidate for the office of sheriff, and contestee was also a candidate for said office; that the said R.I. Burke, whose duty it was under the law to send a sufficient number of ballots to accommodate the voters in the different precincts of the county, was a candidate in said election for judge of probate, and was opposed by one E. E. Mathews; that in said precinct 12 a majority of the votes favored contestee for sheriff, and were in favor of E. E. Mathews for probate judge, and the said contestant, Christopher C. Scheuing, and the said R.I. Burke for the purpose of defeating contestee for said office, and for the purpose of defeating E. E. Mathews for probate judge, formed a fraudulent combination to prevent the free and fair exercise of the elective franchise by the voters of said precinct, and as a part of said scheme the said R.I. Burke as judge of probate willfully failed or refused to supply a sufficient number of printed ballots for said precinct, in order to defeat said contestee for said office, and as a result of said fraudulent scheme entered into as aforesaid a number of legal votes were lost to contestee at said box, and a number of ballots had to be prepared in writing for qualified electors who desired to vote at said election, and while some of said ballots may have been cast for contestee on other than a printed ballot, he avers that said ballots were legal and can be counted."

Thereafter the contestee, by formal petition, showed to the judge of probate the charges preferred against him in the answer, and moved the judge to certify his incompetency by reason thereof to the proper authority, in order that a special judge might be appointed for the trial of the contest. Upon the refusal of the judge of probate to so certify, contestant, Bryce, applied to the judge of the Eighth circuit for a writ of mandamus. Demurrer having been sustained to the petition for mandamus, and the petitioner failing to amend, the petition was dismissed. This appeal followed.

Questions as to what interest will disqualify a judge have been brought to this court not infrequently. We need refer to only a few of the cases of recent date. In Ex parte State Bar Association, 92 Ala. 118, 8 So. 770, this language was used: "The interest which will disqualify must be a pecuniary one, or one affecting the individual rights of the judge." If this language is to be construed as limiting the disqualifying interest to a pecuniary one, as apparently the appellee would have it, it was so limited for the purposes of that case, and for the obvious reason that the sole question there propounded for decision was whether the judge's membership in the State Bar Association, which had instituted a proceeding for the disbarment of an attorney, and which would become liable for the costs of the proceeding, should it be determined adversely to the association, involved him in pecuniary personal liability. In Fulton v. Longshore, 156 Ala. 611, 46 So. 989, 19 L. R. A. (N. S.) 602, it was said, in consonance with the authorities generally, that the interest which will disqualify must be personal to the judge; but it was also said that the disqualifying interest need not be a pecuniary one. To the same effect is Medlin v. Taylor, 101 Ala. 239, 13 So. 310. In Ex parte Cornwell, 144 Ala. 497, 39 So. 354, the ruling was that the grounds of disqualification set down in the statute, section 4626 of the Code of 1907, are not exclusive, but that any interest, the probable and natural tendency of which is to create a bias in the mind of the judge for or against a party to the suit, is sufficient to disqualify, thus preserving the rule of the common law which held the doctrine that no judge ought to act where, from interest or any other cause, he is supposed to be partial to one of the suitors. Smith v. Pitts, 139 Ala. 152, 36 So. 20.

We have only to apply the principle of these cases to the facts alleged in the petition for mandamus and admitted by the demurrer. Petitioner's election to office was being contested. In the same election the judge before whom the contest was to be tried had been a candidate for re-election and had been re-elected. By his answer to the contest petitioner had averred that the judge had fraudulently conspired with petitioner's competitor for public favor to prevent a free and fair exercise of the elective franchise, and as a part of the scheme had willfully failed or refused to discharge a duty placed upon him by the statute. We think we need not inquire how effectual to change the result of the election the official wrongdoing attributed by petitioner to the judge may have been. If the contestee's formal reply to the contest, renewed under oath in this petition for mandamus, be true, the facts alleged were calculated to corrupt the result of the election. The statute provides that the election of any person...