Davis v. Teague

• Decision Date: 07 November 1929
• Docket Number: 7 Div. 889.
• Citation: 125 So. 51,220 Ala. 309
• Parties: DAVIS v. TEAGUE.
• Court: Alabama Supreme Court

125 So. 51

220 Ala. 309

DAVIS v. TEAGUE.

7 Div. 889.

Supreme Court of Alabama

November 7, 1929

As Modified on Denial of Rehearing December 19, 1929.

Appeal from Circuit Court, St. Clair County; O. A. Steele, Judge.

Statutory contest by T. D. Teague of the election of M. C. Davis to the office of clerk of the circuit court of St. Clair county. Judgment for contestant, and contestee appeals. Affirmed.

Contestant in election contest was not required to prove that contestee had been declared elected clerk of circuit court.

The substance of the grounds of contest is that contestee was not, on November 6, 1928, eligible to be elected to said office, not being a qualified elector of said county on said date, for the reason that he was delinquent or had not paid his poll tax for the years 1901, 1902, 1903, 1904, 1905 1916, and 1917.

The special finding of facts made by the trial judge and judgment rendered thereon are as follows:

"The court finds the contestant to be a man thirty-six years of age, and a resident citizen of Ashville, in St. Clair County, Alabama, and reached the age of twenty-one in 1914 and registered as a voter of St. Clair County in 1914. That he entered the service of the United States as a soldier during the World War, to-wit: On May 15th, 1918, and was honorably discharged from the United States Army on the 7th of June, 1919; that he enlisted under the name of Theodore D. Teague, which, from the evidence, the court finds to be his correct name. That he never lived in any other State or county than Alabama and St. Clair County, and that he paid all poll taxes due by him until the adoption of the amendment to the Constitution exempting ex-soldiers of the World War from the payment of poll tax, and that he, therefore, was a qualified elector on November 6th, 1928, the date of the election herein questioned, and is now such qualified elector in said St. Clair County.

"The court further finds that Mack Davis, the contestee, was born in St. Clair County, on May the 26th, 1872; that he remained in St. Clair County until he was about nineteen years of age, at which time he went to Oklahoma and remained there two years; then went to Colorado and remained a little over two years; then went to Leavenworth, Kansas, and remained over two years, and from Leavenworth, Kansas, to Galveston, Texas, and remained in Galveston, Texas, until he joined the army in the Spanish-American War, in 1898 at Galveston, Texas; that he remained in the army a little over eleven months, and then went back to Galveston, Texas. That he remained in Galveston until June, 1901, and then came to Alabama, and to St. Clair County; and from St. Clair County he went to New York and remained there a little better than three months, and was in New York on the first day of October, 1901; he then came back to Alabama and remained here in St. Clair County until September, 1902, and registered as a voter in St. Clair County, and in Beat 8 thereof, in May of 1902. In September, 1902, after having married during Christmas of 1901, went to Galveston, Texas, where he remained until October or November of 1905. That he cast his first vote in Topeka, Kansas, in 1896. That he paid no poll taxes in St. Clair County for either of the years 1901 or 1902.

"I further find that the contestee became forty-five years of age on the 26th day of May, 1917, and that, therefore, he was due no poll tax on the first day of October, 1917, but that he was liable for poll taxes due on the first of October, 1916.

"I find that the contestee paid all poll taxes due by him to the State accruing on the first day of October, 1906, 1907, 1908, 1909, 1910, 1911, 1912, 1913, 1914, 1915; and that the poll tax records of St. Clair County so disclose; that he has voted in every election held in St. Clair County, since the year 1908, and that, so far as could be ascertained, his name has appeared on the certified list of registered voters made by the probate judge of St. Clair County and published in the Ashville Aegis, a newspaper published in St. Clair County, Alabama.

"That the poll tax records kept, and required by law to be kept, in the office of the probate judge, nowhere disclose the payment of a poll tax by the contestee, for the year beginning October the first, 1916; and that the contestee has poll tax receipts for each year beginning October 1st, 1906, and up to and including poll tax due October first, 1915, but has no tax receipt for the year beginning October 1st, 1916. And the court finds that the poll tax due October 1st, 1916, was not paid; and that the contestee was due the State of Alabama, on November 6, 1928, his poll taxes for the years 1901, 1902 and 1916.

"The court further finds that the contestee paid to the tax collector of St. Clair County, on November 27th, 1928, Ten Dollars and Fifty cents ($10.50), poll taxes for the years 1901, 1902, 1903, 1904, 1905, 1916 and 1917, which payment was accompanied by a letter signed by the contestee in which he contended that he was not due the poll taxes for the years mentioned, but that he was making said payment for the purpose of removing all doubt whatsoever as to whether or not he was due the State and County any poll taxes.

"The court, therefore, finds that on the first day of February, 1928, the contestee was due the State and County his poll taxes for the years 1901, 1902 and 1916.

"It is therefore considered, adjudged and decreed by the court that the contestee be and he is hereby ousted from said office of clerk of the circuit court of St. Clair County, and that said office be and the same is hereby declared vacant."

C. R. Robinson, of Ashville, and O. D. Street & Son, of Birmingham, for appellant.

James A. Embry, of Ashville, and M. M. Smith, of Pell City, for appellee.

BROWN J.

The appellant's first contention is that the statement of contest filed by the appellee is fatally defective, because it does not "state facts" showing that contestant is a qualified elector; the petition merely averring, in the language of the statute, that he was such elector. Code 1923, § 550. We are of opinion that this contention is without merit. The statute confers the right of contest on "any elector" choosing to contest, and, while an averment that the contestant is such elector is a jurisdictional fact, essential to the invocation of jurisdiction to hear the contest, Pearson v. Alverson, 160 Ala. 265, 49 So. 756, yet where, as here, the averment follows the prescription of the statute averring "the name of the party contesting, and that he was a qualified voter when the election was held," it is sufficient. Code 1932, § 550, subd. 1; 9 R. C. L. 1167, § 155.

The appellant's next contention is that the failure of the contestee to pay poll tax due from him for one or more years prior to his election did not render him ineligible to election to office; that, though section 2575 of the Code disqualifies one who is not a qualified elector from holding office, the disqualification may be removed subsequent to the election, by the payment of all poll taxes due. The argument advanced in support of this contention is that the court in construing and applying the statute, Code of 1907, § 1467, in Finklea v. Farish, 160 Ala. 230, 49 So. 366, "did not note with sufficient care the verbiage" of the statute, and this lack of care superinduced its erroneous interpretation.

The question was considered in the later case, Shepherd v. Sartain, 185 Ala. 439, 64 So. 57, 61, and it was there observed, in respect to the first six subdivisions of the statute: "It is settled in this state, in harmony with reason and the weight of judicial authority, that 'ineligible' here means inelectable-that is, not capable of being chosen-and hence the qualifications enumerated relate to the date of election, and not merely to the date of actual induction into office."

This statute has, since these interpretations, been brought forward in the Code of 1923, and readopted by the Legislature without change of verbiage, carrying with it the previous interpretation, and this, under numerous decisions of this court, forecloses further controversy as to its meaning. Spooney v. State, 217 Ala. 219, 115 So. 308; Barnewall v. Murrell, 108 Ala. 366, 18 So. 831.

Appellant's next contention is that appellee failed to sustain the averment of his statement of contest; that he was a qualified voter at the time of said election, by legal and competent evidence.

Among other items of evidence offered and received pertaining to this question, over appellant's objection, was the book made of the county registrars containing an alphabetical list of registered voters of Ashville, precinct No. 1, St. Clair county, for the year 1914, and returned by them to the office of the probate judge, under the provisions of section 318 of the Code of 1907, section 401 of the present Code.

When this section of the Code is read in connection with the preceding sections of article 3 of chapter 19 of the Code (section 370 et seq.), we think it is clear that the "registration list" made in the book furnished by the secretary of state under the provisions of section 397 of the Code, and returned to the judge of probate by the registrars under the provisions of section 401, must be regarded and held to be the official register-the permanent record-of qualified voters.

In the book offered by the appellee appeared the name "Duette Teague," born October 18, 1893, and in connection with this official register appellee testified that his name was "DeWitte Teague"; that the date of his birth was October 18, 1893; that he was the only person in Ashville...