Ex parte Owens

• Decision Date: 30 June 1906
• Citation: 148 Ala. 402,42 So. 676
• Parties: EX PARTE OWENS.
• Court: Alabama Supreme Court

42 So. 676

148 Ala. 402

EX PARTE OWENS.

Supreme Court of Alabama

June 30, 1906

On Rehearing, December 6, 1906.

"To be officially reported."

Application by Bud Owens for prohibition to restrain Hon. John Pelham, as judge of the circuit court in Cleburne county, from proceeding to try the applicant on a criminal charge. Application denied. On motion for rehearing. Overruled.

Whitson & Dyer, for appellant.

Knox Acker & Blacman, for appellee.

SIMPSON J.

This is an application for a writ of prohibition, to be directed to Hon. John Pelham, judge of the circuit court in Cleburne county, to prohibit and restrain him from proceeding to try said Bud Owens, on the ground that the county seat of said county is at Edwardsville, and not at Heflin, in said county where the court is being held. The alternative writ is waived, and Judge Pelham answers, basing his authority to hold said court at Heflin on the act of March 3, 1903, and the election held thereunder, so that the entire contention rests upon the proposition as to whether or not said act is valid. This act was before this court heretofore, and the court, after full consideration, held that the act is a general law, that it was properly enacted, and a valid law. State ex rel. Brown v. Porter (Ala.) 40 So. 144. We are satisfied with that decision, and shall not enter into any of the questions therein litigated.

It is insisted now that the act in question is violative of section 41 of our Constitution, which provides that "no court house or county site shall be removed except by a majority vote of the qualified electors of said county, voting at an election held for such purpose," because section 17 of the act (Acts 1903, p. 124) provides that "if, upon a canvass of the returns of said election, it shall be ascertained and declared that a majority of all the legal votes cast were in favor of the removal of the county seat then the city, town or village thus selected shall thereafter be the county seat"; the contention being that, under said section of the Constitution, it requires a majority of all of the qualified electors of said county to vote for the proposition in order to carry it, without regard to the number of votes actually cast. Without dwelling on the improbability of the Constitution makers enacting a law with such an uncertain quantity in it as a determination of just how many qualified electors were in a certain county at a given time, with no record of the deaths or removals that may have occurred up to the date of the election, we think the language of the section itself is very clear that it is only a majority of those who vote that is required. Whether there be, or not, the distinction contended for between the words "voter" and "elector," it matters not. The removal is by "a majority vote." That of itself, if nothing else was said, would carry with it the idea of a majority of the votes; but it says "a majority vote" of whom? If it means of the qualified electors of the county, the word "voting" should be left out. It cannot mean anything else than that it is, as it states "of the electors voting at an election held for such purposes." It cannot be the majority vote "voting"; for that would be absurd. It cannot be the majority voting; for "majority" is an adjective, qualifying "vote." There is nothing else for the word "voting" to qualify, except "electors"; and it is the equivalent of a majority of the electors who vote. We regard this as the plain and reasonable interpretation of the section, and it is unnecessary to multiply authorities on this point.

It is next insisted that said act is violative of section 190 of our Constitution, which provides that "the Legislature shall pass laws, not inconsistent with this Constitution, to regulate and govern elections, and all such laws shall be uniform throughout the state, and shall provide by law for the manner of holding elections and of ascertaining the result of the same." This provision has reference particularly to the general election laws of the state; but, conceding that it applies to laws providing for elections in the various counties, this law makes provision for all of the counties according to their several needs, and in providing for so many counties, differently situated, it is necessary that they be classified according to their several needs and conditions. It would be manifestly unjust to provide for an election on the same terms and conditions in a county which had just paid large money and assumed heavy obligations to build a courthouse and jail, as in a new county which had neither. This principle of classification has been so often recognized as not impinging upon the principle of the uniformity of laws that it is unnecessary to discuss it at length. This act is not violative of section 190 of our Constitution. Harwood v. Wentworth, 162 U.S. 547, 16 S.Ct. 890, 40 L.Ed. 1069; Bone v. State, 86 Ga. 108, 12 S.E. 205; People v. Haselwood, 116 Ill. 319, 6 N.E. 480; Bronson v. Oberlin, 41 Ohio St. 476, 52 Am. Rep. 90; People v. Henshaw, 76 Cal. 436, 18 P. 413.

It is next insisted that section 179 of our Constitution implies absolute and inviolable secrecy in voting, not only at the time of casting the ballot, but for the future, and that the act in question violates this provision of our Constitution. As this insistence is very urgent, and supported by quotations from a number of cases, we have examined them with great care, and find that, in the greater number of them, the real point in controversy was not before the court, and these dicta are mainly remarks of the court in cases which sustained the constitutionality of various statutes, which were supposed to impinge on similar constitutional provisions. In the case of State v. Shaw, 9 S. C. 94, the only point decided was that, when the Constitution required judges to be elected by joint ballot, it did not mean viva voce voting. In the case of State ex rel. Briesen v. Barden, 77 Wis. 606, 46 N.W. 899, 10 L. R. A. 155, the point decided was that the printing of the word "judiciary" on the ballots cast for one candidate, and not on those cast for the other, did not invalidate the ballots; the court saying: "It is not the ballot itself that is at fault, but the use made of it." Page 608 of 77 Wis., page 901 of 46 N.W. And this, notwithstanding the statute prohibited any device, etc., on the ballot. State ex rel. Runge v. Anderson (Wis.) 76 N.W. 482, 42 L. R. A. 239, decided that a candidate's name could not be placed on the ticket twice because he had been nominated by two parties, and that a statute providing for an official ballot was not unconstitutional because it deprived the voter of the right to make out his own ballot. State ex rel. Smith v. Anderson, 26 Fla. 240, 8 So. 1, decides that, where a municipal ordinance provided for separate boxes, plainly marked, for the different offices voted for, and that the ballot should contain nothing but the name of the officer voted for, ballots placed in the proper box, but not having the name of the office to be filled, should be counted. Taylor v. Bleakley, 55 Kan. 1, 39 P. 1045, 28 L. R. A. 683, 49 Am. St. Rep. 233, decides that, first, the Legislature may adopt such reasonable regulations and restrictions for the exercise of the elective franchise as may be deemed necessary to prevent fraud, intimidation, etc.; and, second, the requirement that the ballots shall be numbered is mandatory, and not unconstitutional. The remarks quoted by counsel are in regard to the interpretation of the Kansas statute, and not of any constitutional provision. Page 14 of 55 Kan., page 1049 of 39 Pac. (28 L. R. A. 683, 49 Am. St. Rep. 233). Ex parte Arnold, 128 Mo. 256, 30 S.W. 768, 1036, 33 L. R. A. 386, 49 Am. St. Rep. 557, decides that the court cannot compel the production of the ballot box before the grand jury, under a Constitution which provided for numbering the ballot, and forbade the officers to make known how the elector voted, except in contests of the election. Page 261 of 128 Mo., page 769 of 30 S.W. (33 L. R. A. 386, 49 Am. St. Rep. 557). Pearson v. Supervisors, 91 Va. 322, 21 S.E. 483, decides that a statute providing for a constable to aid blind men in preparing their ballots was not unconstitutional; the court remarking that, "while the vote by ballot implies a secret ballot, etc., yet the main object, which is the right to vote, must not be defeated by a too rigid observance of the incidental right, which is that of secrecy." Page 334 of 91 Va., page 485 of 21 S.E. Temple v. Mead, 4 Vt. 535, simply held that a printed ballot was valid. People v. Cicott, 16 Mich. 283, 97 Am. Dec. 141, merely passes upon the effect of several irregularities under the statute. No constitutional question is decided. Attorney General v. Detroit, 58 Mich. 213, 24 N.W. 887, 55 Am. Rep. 675, decides that the requirement of the statute that the election inspectors must be of different political parties is unconstitutional, principally upon the ground that it is a superadded qualification test for office.

Williams v. Stein, 38 Ind. 89, 10 Am. Rep. 97, does decide that an act providing for numbering the ballot is unconstitutional, and for authority cites Judge Denio's dissenting opinion in People v. Pease, 27 N.Y. 45, 84 Am. Dec. 242, to the effect that "the spirit of the system requires that the elector should be secured then, and at all times thereafter"; also Temple v. Mead, and People v. Cicott, supra. The opinion, on these authorities, holds that the provision is "contrary to the spirit and substance of constitutional provisions." The case of Brisbin v. Cleary, 36 Minn. 107, 1 N.W. 825, does decide that a statute requiring ballots to be numbered is violative of a similar constitutional provision, on the theory...