Garrett v. Cuninghame
| Decision Date | 12 June 1924 |
| Docket Number | 1 Div. 269. |
| Citation | 100 So. 845,211 Ala. 430 |
| Parties | GARRETT v. CUNINGHAME. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Clarke County; Arthur B. Foster, Judge.
Contest by Coma Garrett, Jr., of the election of James G. Cuninghame to the office of Probate Judge of Clarke County. Judgment for contestee, and contestant appeals. Affirmed.
Where election officers stamped candidate's name at bottom of part of election ballots, there being no room to write name in where it belonged, and required electors before voting to declare which ballot they wanted, held not to vitiate result of election in view of Code 1907, §§ 414, 455, 456, 474, and Const.1901, §§ 179, 189, 190.
The petition for mandamus in the case numbered 1 Div. 263 [1] alleges that in the primary election, wherein relator Cuninghame and respondent Garrett were candidates, Cuninghame received the highest number of votes, and was declared by the county committee to be the nominee; that Garrett instituted a contest of said election before the county committee resulting in a finding for contestee; that contestant appealed to the state executive committee from the action of the county committee; that the chairman of the state committee did not call a meeting of the state committee, but selected five members of the committee to hear the appeal and to determine and adjudicate the same; that said five members met, heard the appeal, and rendered judgment to the effect that contestant had received a majority of votes; that said subcommittee so reported or certified to the chairman of the state committee, and that such chairman certified the result to the chairman of the county committee; that contestant, the chairman of the state committee and the subcommittee of five are claiming that the finding of the subcommittee is final and no appeal therefrom is pending; that the statute provides for appeals to the state committee; that one-third thereof is declared to be a quorum, and that the subcommittee of five were less than one-third of the state committee; that such subcommittee had no authority to hear and determine the appeal, but only to take testimony and report to the full committee for final adjudication; and that the state committee has not determined the appeal within 30 days before the general election.
It is alleged that the chairman of the state committee was without authority to issue his certificate to the chairman of the county committee declaring Garrett to be the nominee for that the judgment and decision of the subcommittee was wholly void; that it is the purpose of the state chairman, in the event the county committee fails to certify to the probate judge the finding of the subcommittee, himself to certify the same to the probate judge; that unless restrained, Garrett, as probate judge, will cause his own name to be printed upon the ballot as the nominee.
It is prayed that mandamus issue to Garrett, as probate judge, commanding him to print upon the ballot the name of relator as nominee for the office of probate judge.
Respondent Garrett, by answer and plea, set up that the state committee by resolution declared that all election contests should be heard and determined by a subcommittee to be appointed by the chairmen, and, also, that each member of the state committee waived notice of any hearing on contest filed; that upon respondent's appeal to the state committee, relator, through his attorney, requested that the state chairmen appoint a subcommittee to hear and determine the contest; that relator appeared in person and by attorney and participated in this hearing, made no objection to the jurisdiction or authority of the subcommittee, and assented to its finding and judgment.
Ray Rushton and James J. Mayfield, both of Montgomery, and J. F. Thompson, of Birmingham, for appellant.
Wm. Cunninghame, of Linden, Mulkey & Mulkey, of Geneva, and Stevens, McCorvey, McLeod & Goode, of Mobile, for appellee.
The appeal is from judgment in the contest of the election of probate judge of Clarke county. The trial was before the circuit court without a jury, and resulted in a judgment in favor of contestee. The usual presumptions obtain in support of a judgment based upon material testimony given ore tenus in open court and on documentary evidence.
The parties to this suit were the only candidates for the Democratic nomination at the primary election held in said county in August, 1922, and Judge Cuninghame was declared, by the Democratic executive committee in that county, the nominee of the party. Appellant's contest before the county executive committee was decided by that committee in favor of appellee, and the former took an appeal to the state executive committee of the Democratic party. It was there duly referred to a subcommittee appointed to hear the contest, and, being heard, after both parties had appeared without objecting to the jurisdiction of that subcommittee, contestant Garrett was adjudged and declared to be the rightful nominee of the party. This decision was rendered after September 20, 1922.
Thereafter, on October 14, 1922, appellee filed a petition for mandamus before the judge of the circuit court to compel the probate judge of Clarke county to place the name of James G. Cuninghame on the official ballot as the nominee of the Democratic party for probate judge, to be voted for as such at the general election to be held in November. The writ of mandamus was granted on the hearing, October 21, 1922, and on the same day the appellant took an appeal to this court, giving the supersedeas bond exhibited in the record in No. 263, 1st Div., Coma Garrett, Jr., as Judge of Probate of Clarke County, Alabama, v. State of Alabama on relation of James G. Cuninghame.
The chairman of the state Democratic committee duly called a meeting of the committee, to be held on the 26th day of October, 1922, to hear and determine this controversy over the Democratic nominee for probate judge of Clarke county, and at said hearing the state committee ratified and confirmed the said former action of its subcommittee (declaring Judge Garrett the nominee) reversing the decision and judgment of the Democratic executive committee for Clarke county declaring Judge Cuninghame to be the nominee. The decision of the state Democratic committee and certificate thereof are as follows:
Such were the conflicting judgments as to who was the nominee of the Democratic party for said office in said county that confronted the electorate of the county when the November, 1922, general election was held. The returns as announced showed the election of Judge Cuninghame.
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Eubanks v. Hale
...adequate penalties, all undue influences from power, bribery, tumult or other improper conduct." Further, in Garrett v. Cunningham[Cuninghame], 211 Ala. 430, 100 So. 845 (1924), the rights of citizen voters (each and every qualified elector in Jefferson County) [emphasis added] are protecte......
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Mitchell v. Kinney
... ... construction and application of the election laws has found ... expression in many decisions. For example, in Garrett v ... Cuninghame, 211 Ala. 430, 438, 100 So. 845, 853, it was said: ... " ... * * * Mr. Freeman, in his comprehensive note on Patton v ... ...
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Eubanks v Hale
...under adequate penalties, all undue influences from power, bribery, tumult or other improper conduct." Further, in Garrett v. Cunningham, 211 Ala. 430, 100 So. 845 (1924), the rights of citizen voters (each and every qualified elector in Jefferson County) [emphasis added] are protected as f......
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Roe v. Mobile County Appointment Bd.
...held that an election could not be voided if the manner of conducting it substantially complied with the law. Garrett v. Cuninghame, 211 Ala. 430, 439, 100 So. 845, 853-54 (1924). Garrett involved an election contest between two Democratic candidates for probate judge of Clarke County, and ......