Ex parte State ex rel. Bragg, 3 Div. 64.

Citation197 So. 32,240 Ala. 80
Decision Date28 June 1940
Docket Number3 Div. 64.
PartiesEX PARTE STATE EX REL. BRAGG.
CourtSupreme Court of Alabama

Petition for Writ of Prohibition.

Original petition of the State, on the relation of Chas. E. Bragg, for writ of prohibition to require A. A. Griffith, as Judge of the Circuit Court, Lawrence County, to desist from further proceeding in a matter seeking to prohibit the Democratic Executive Committee of Lawrence County from hearing and determining a primary election contest, and to vacate an order so restraining or prohibiting said committee.

Writ granted.

Perdue & Miller, of Moulton, and Peach & Caddell, of Decatur, for petitioner.

Horace C. Wilkinson, of Birmingham, John C. Forney, of Moulton, and S. A. Lynne, of Decatur, for respondent.

BOULDIN Justice.

This is an original proceeding in this court for a writ of prohibition or other appropriate writ directed to Honorable A. A. Griffith, Judge of the Circuit Court of Lawrence County, requiring him to desist from further proceeding in a matter pending in his court wherein a writ of prohibition or writ of mandamus is sought forbidding the Democratic Executive Committee of Lawrence County to hear and determine a contest of the primary election of June 4, 1940, so far as relates to the election of a Democratic candidate for the office of Judge of Probate in the general election of November, 1940.

The petition before us sets forth the proceedings before the Executive Committee, and the proceedings before Judge Griffith.

We summarize the facts necessary to this decision as follows:

In the run-off Democratic primary election of June 4, relator, Chas E. Bragg and Isaac Johnson, Jr., were the contending candidates for nomination as the Democratic nominee for the office of Judge of Probate of Lawrence County. Upon canvassing the returns as required by the primary election law, Johnson was duly declared elected. On June 11, within five days after result declared, Bragg filed with the Chairman of the County Executive Committee his statement in writing designed to institute a contest of the election pursuant to Section 41 of the Primary Election Law, Gen.Acts 1931, p. 90. Upon filing same, the Chairman within five days called a meeting of the committee for July 1, 1940, to hear and determine the contest. The date fixed was within the twenty days prescribed by Section 44, p. 91.

At this stage, and before the committee had taken further action in the matter, the contestee, as relator, filed his petition for a writ of prohibition or mandamus directed to the Chairman and members of the Executive Committee forbidding them to entertain and proceed to hear and determine the contest.

On the filing of this petition Judge Griffith entered an order requiring the Chairman and members of the Executive Committee to appear on July 8, 1940, to show cause why the prayer of contestee's petition should not be granted, and meantime restraining them from hearing the contest until further orders of the court.

Thereupon the petition for prohibition was filed by the contestant in this court challenging the jurisdiction of the circuit court to enter the order aforesaid, or to further proceed under the petition filed in that court.

This petition before us sets out the statement filed with the committee to institute the contest, also the petition filed by contestee in the circuit court, which made an exhibit thereto the said statement purporting to institute a contest.

It is not questioned that the County Democratic Executive Committee is the statutory tribunal vested with jurisdiction of the contest, with right of appeal to the State Executive Committee; nor is it contended that the circuit court has jurisdiction to hear the contest.

The theory of the contestee, in short, is that no contest has been instituted before the Executive Committee, that the statement instituting the contest is insufficient to invoke the jurisdiction of that tribunal; that, for want of jurisdiction, any finding by the committee would be void and, therefore, should be ended by prohibition.

The sufficiency of the statement filed by the contestant with the committee to invoke its jurisdiction is of first importance.

Some argument is made as to the sufficiency of the averment under Subdivision 1 of Section 41, supra, namely, that the contestant "was a qualified elector when the primary was held and he participated therein." We find the averment in that regard sufficient, and further comment need not be indulged.

The chief attack is upon the sufficiency of the statement of grounds of contest.

Among the grounds presented are "illegal votes given" and "rejection of legal votes." Section 37, p. 89. See, also, § 43.

Touching these grounds of contest, the statute, Section 41, declares: "If the reception of illegal votes is alleged as a ground for contest, it is a sufficient statement of said ground to allege that illegal votes were given to the person whose nomination is contested, which, if taken from him will of themselves alone or in conjunction with other alleged grounds of contest, if any, reduce the number of legal votes given to him down to or below the number of legal votes given to some other candidate for the same nomination, and if the rejection of legal votes is alleged as a ground, it is a sufficient statement of the ground to allege the legal votes were offered and rejected which, if cast and counted, would of themselves alone or in conjunction with other alleged grounds, if any, increase the number of legal votes cast for such candidate to a number equal to, or greater than the number to which the contestee was legally entitled."

The statement instituting this contest literally followed this statute.

It is declared by the statute to be sufficient. It is argued that the statute, in this regard, is void in that it is a denial of due process of law, for failure to give the contestee the names of alleged illegal votes received and counted for contestee, or the names of alleged legal votes rejected, which should have been received and counted for contestant.

Section 42 of the statute, immediately following the above quoted provision, reads: "No testimony must be received of any illegal votes or of the rejection of any legal votes in any contest commenced under the provisions of this act unless the party complaining thereof has given to the adverse party notice in writing of the number of illegal votes and by whom...

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    ...’ Ex parte Coffee County Dep't of Human Res., 771 So. 2d 485, 487 (Ala. Civ. App. 2000), quoting, Ex parte State ex rel. Bragg, 240 Ala. 80, 85, 197 So. 32, 36 (1940). As the Alabama Supreme Court stated in Ex parte Maye, 799 So. 2d 944 (Ala. 2001) :" ‘ " ‘A writ of prohibition is an extrao......
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