Ex parte National Ass'n for Advancement of Colored People, 3 Div. 779

• Decision Date: 12 February 1959
• Docket Number: 3 Div. 779
• Citation: 109 So.2d 138,268 Ala. 531
• Parties: Ex parte NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE. In re STATE ex rel. John PATTERSON, Atty. Gen., v. N. A. A. C. P.
• Court: Alabama Supreme Court

Page 138

109 So.2d 138

268 Ala. 531

Ex parte NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE.

In re STATE ex rel. John PATTERSON, Atty. Gen., v. N. A. A. C. P.

3 Div. 779.

Supreme Court of Alabama.

Feb. 12, 1959.

Robt. L. Carter, New York City, Fred D. Gray, Montgomery, and Arthur D. Shores, Birmingham, for petitioner.

John Patterson, Atty. Gen., Edmon L. Rinehart and Jas. W. Webb, Asst. Attys. Gen., for respondent.

PER CURIAM.

This cause comes before this tribunal on mandate from the Supreme Court of the United States, N. A. A. C. P. v. State of Ala., 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; this Court having previously denied certiorari, but having expressed its views as to the merits of the petitioner's claim of a constitutional right to refuse production of its membership lists. 265 Ala. 349, 91 So.2d 214.

While the Supreme Court of the United States, in its opinion supra, seems to recognize its lack of jurisdiction over matters of state ('nonfederal') procedure, it nevertheless assumed jurisdiction quoad hoc ('for this turn', as that phrase has been sometimes defined), and this upon the premise that the interpretation by this Court of its own procedural rules was erroneous, or that petitioner was not sufficiently apprised of this Court's 'novel' interpretation of those rules in the decision under review.

Lest there be no misapprehension on the part of the bench and bar of Alabama, we here reaffirm the well recognized and uniform pronouncements of this Court with respect to the functions and limitations of common-law certiorari, and the distinctions between that and other methods of review. 265 Ala. 349, 91 So.2d 214, supra. As we stated in American Federation of State, County and Municipal Employees v. Dawkins, 268 Ala. ----, 104 So.2d 827, 834: 'We cannot hurdle or make shipwreck of well-known rules of procedure in order to accommodate a single case.'

The decision of the Federal Supreme Court seems to have proceeded upon a hearing there, upon consideration of allegations there made, and upon showings or evidentiary matters and contentions, much of which were never before this Court. It thereupon reversed the judgment of this Court and remanded the case for further proceedings 'not inconsistent with' the opinion of that Court.

The first question before this Court on original consideration was whether or not there existed a prima facie right of refusal on the part of the petitioner. Ex parte Boscowitz, 84 Ala. 463, 4 So. 279. For the purposes of our decision we limited our opinion on the merits to petitioner's right of refusal to submit its membership lists. This question has been answered by the Supreme Court of the United States in the negative, by holding the petitioner to have a qualified right under the facts appearing before that Court, subject to an overriding interest of the State. The finding of that Court was to the effect that the State of Alabama had failed, at the hearing, to show such an overriding interest and ruled petitioner was not in contempt for failure to produce the lists.

This brings up the second question for review now, viz.: the scope of the order of the trial court and the facts apparent on the face of the record. Petitioner contends that it was held in contempt for refusal to produce its membership lists. As to the petitioner's right of said refusal, the Supreme Court of the United States, as stated, has settled that point, and no further discussion would be proper. However, petitioner's contention as to this sole reason it was held in contempt is not borne out by the record and the Supreme...