Ex parte Register

• Decision Date: 19 June 1952
• Docket Number: 4 Div. 692
• Parties: Ex parte REGISTER et al.
• Court: Alabama Supreme Court

Page 41

60 So.2d 41

257 Ala. 408

Ex parte REGISTER et al.

4 Div. 692.

Supreme Court of Alabama.

June 19, 1952.

Robert B. Albritton, Andalusia, and Jas. A. Mulkey, Geneva, for petitioners.

Rushton, Stakely & Johnston, Montgomery, E. C. Boswell, Geneva, B. W. Smith, Samson, and A. A. Smith, Hartford, for respondents.

FOSTER, Justice.

Heretofore, on April 30, 1952, we ordered a peremptory writ of prohibition to be issued in this matter without the Court adopting an opinion, upon the basis of which the order was made, for the reason that there did not seem to be sufficient time to do so. This opinion is prepared to be applicable to that order.

It is a petition to this Court for a writ of prohibition to be directed to the Judge of the Circuit Court of Geneva County. The purpose of this proceeding is to test the jurisdiction and power of the Judge of the Circuit Court of Geneva County to make an alternative writ of mandamus directed to these petitioners commanding them to appoint certain named persons to serve as officers in the primary elections to be held on May 6 and June 3, 1952, in said county for the nomination of candidates for county offices, as well as State offices.

The order first made by the judge of the circuit court, which is claimed to be without jurisdiction or authority, was dated April 22, 1952, and ordered an alternative writ of mandamus to issue to petitioners in the instant petition, and to be returnable on the 26th day of April 1952. Another was dated April 26th, returnable April 28, 1952, to which reference will be made hereafter. Thereupon the clerk of the Circuit Court of Geneva County issued said alternative writ on the order dated April 22d in due and proper form, whereby petitioners were ordered and commanded to appoint the officers named in said petition, who had been nominated by the Geneva County Democratic Executive Committee, or to appear before the court on the 26th day of April, 1952, and show cause why they had not done so. The petition to the circuit court was presented by E. C. Boswell, in which he declared that he is a resident of said county, and chairman of the Geneva County Democratic Executive Committee, and at that time serving in such capacity.

The instant petition for prohibition was presented to us by W. P. Register, J. A. May and J. Clyde Lewis, individually and severally as members of the appointing board for the selection of officers for said primary. The petition called attention to the fact that under section 120, Title 17, Code, such appointing board is to consist of the judge of probate, sheriff, and clerk of the circuit, and that petitioner Register is a duly elected, qualified and acting sheriff of Geneva County, and is not a candidate for election in the primary election and, therefore, qualified to serve on the appointing board; that P. C. Black and W. R. Draughon are the probate judge and clerk of the circuit court, respectively, of said county, and each is a candidate for re-election in said primary and, therefore, disqualified from serving on said board. That said Draughon is also the register of the circuit court in equity under appointment. Attention is also called to section 122 of Title 17, Code, which provides that when either of said officers constituting the appointing board is a candidate in said proposed election, it shall be the duty of the judge of probate to certify to the register the fact of such disqualification. By section 123 of Title 17, it is provided that the register shall forthwith appoint a qualified elector to take the place of each member of the appointing board who is a candidate for election, and that the person so appointed shall perform the duties thereof. By section 124, Title 17, it is provided that when there is no register of the circuit court, or he is disqualified, the judge of probate shall certify the fact of the candidacy of the judge of probate, sheriff or circuit clerk to the governor who shall forthwith appoint a qualified elector to act in place of such disqualified members of the appointing board.

The petition shows that the register of the circuit court was also the clerk of the court who was disqualified to serve on the board and, therefore, the register was disqualified to fill the membership of said board, and that the judge of probate certified the fact of the candidacies of the judge of probate and clerk of the circuit court to the Governor of Alabama, who did forthwith appoint petitioner J. A. May in the place of the probate judge and petitioner J. Clyde Lewis to act in the place of the clerk of the circuit court on said appointing board. This was done by the Governor on the 4th day of March, 1952. Wherefore it is alleged in the petition that petitioners who are W. P. Register, the sheriff of said county, and the said May and Lewis, appointed by the Governor, did on the 19th day of April, 1952, appoint from the list of qualified electors of the respective voting places in the county the requisite number of such election officers for each precinct therein to act in said primary election to be held according to law on May 6 and June 3, 1952.

On April 22, 1952, E. C. Boswell presented a petition to the Hon. B. W. Simmons, Judge of the Circuit Court of Geneva County, referred to hereinabove. Said petition alleged that the Geneva County Democratic Executive Committee on Saturday, April 19, 1952, made a list of names for each voting precinct of Geneva County, as provided by section 349, Title 17 of the Code, to hold and conduct the primary elections of May 6th and June 3rd. That said list contained the names of a sufficient number of persons eligible to hold and conduct said elections and the committee nominated the same on April 21, 1952 to petitioners as the appointing board of the county for appointment as officials to hold and conduct said primary election. Said petition for mandamus also alleges that petitioners in the instant proceeding were duly and legally appointed as members of the appointing board by the Governor of Alabama, and that they as members of said board had appointed or attempted to appoint a different list of said officials to hold said primary election, which said list had not been submitted to them by the Democratic Executive Committee or the executive committee of any other party in Geneva County, as authorized and required by section 349 of Title 17. That the said Boswell, acting for the Geneva County Democratic Executive Committee, presented the list so made up by the committee to said appointing board, constituted as above stated, and alleged to be within the time prescribed by law. But that said appointing board ignored said list and failed or refused to appoint the election officials from said list. The petition of said Boswell therefore prayed for the issuance of an alternative writ commanding said members of the appointing board to appoint the officials for the election from a list so made up and nominated by the Democratic Executive Committee and presented to them by said county officers, or to appear before the court and show cause why a peremptory writ should not issue requiring it. It was upon that petition that the Hon. B. W. Simmons ordered the alternative writ as prayed for, to which we have referred.

Later the petition of E. C. Boswell purports to have been amended by alleging that W. R. Draughon, as clerk of the circuit court and ex officio a member of the appointing board, is under no legal disqualification to serve as a member of said board, and as register is not disqualified to perform the duties required by section 123 supra, to make appointments when the members are disqualified. The petition further alleged that it was the duty of Register as sheriff and Draughon as clerk, constituting a majority of the appointing board, to appoint the election officials nominated by the executive committee and that they have failed and refused to appoint the election officials.

Petitioner undertook to amend the prayer by striking therefrom the names of May and Lewis as members of the board of election officials and adding thereto the name of Draughon as clerk of the circuit court. Whereupon the judge of the circuit court issued an order, dated April 26, 1952, to Register as sheriff and Draughon as clerk, as members of the appointing board, directing them to select and appoint as election officials names from the list made up and nominated by the Democratic Executive Committee, or appear on April 28, 1952, and show cause for not doing so. There is no indication that said amendment was filed or the order served. It did not therefore operate as an amendment.

The petition to this Court is by Register, May and Lewis, in which Draughon joins, and seeks an appropriate writ directing the judge of the circuit court to refrain from hearing said petition on its merits and from further proceeding in said cause.

It is evident that the theory on which Draughon is brought back in as a member of the appointing board is that, although he is a candidate for nomination to the office of clerk of the circuit court, he has no opposition in the primary and, therefore, he will not be voted for in said primary and is not disqualified under the terms of the Code provision to which we have referred.

Such being the status of the proceeding in the Circuit Court of Geneva County, the instant petition was presented to this Court on April 28, 1952. Whereupon this Court ordered an alternative writ of prohibition, to which we have above referred, returnable on April 30, 1952. On April 30th this petition came on for hearing. Whereupon the regular judge of the Circuit Court of Geneva County, Hon. B. W. Simmons, having disqualified himself to serve as such because he also is a candidate for re-election subject to said primary, the Chief Justice of this Court appointed the Hon. W. E. Callen, Judge of the Fourth Judicial Circuit of Alabama, to serve in his stead as judge of said court. Both of...