Groom v. Taylor, 1 Div. 990

• Decision Date: 16 December 1937
• Docket Number: 1 Div. 990
• Parties: GROOM v. TAYLOR.
• Court: Alabama Supreme Court

178 So. 33

235 Ala. 247

GROOM v. TAYLOR.

1 Div. 990

Supreme Court of Alabama

December 16, 1937

Rehearing Denied Jan. 20, 1938

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Contest of election by Winston F. Groom against R.V. Taylor. From a judgment dismissing the contest, contestant appeals.

Reversed and remanded.

M.F Dozier, of Mobile, and Harsh, Harsh & Hare, of Birmingham for appellant.

Smith &amp Johnston, of Mobile, for appellee.

KNIGHT Justice.

This appeal is from a judgment of the circuit court of Mobile county, dismissing an election contest instituted by Winston F. Groom, appellant here, against appellee Taylor and others, and involves the election of a city commissioner of Mobile, Ala.

It appears that the city of Mobile operates under a commission form of government.

Gen.Acts 1911, p. 330 et seq., and amendments thereto. The governing body of the city is composed of three commissioners elected by the qualified electors of the municipality. The act provides that one of the commissioners shall be elected every two years. Gen.Acts 1911, p. 340, § 10, as amended by Gen.Acts 1915, p. 871, § 2, requires that the first election, in election years to select a commissioner, shall be held on the second Monday in September, and, in section 11, p. 341, Gen.Acts 1911, if no one of the candidates for the office shall receive a majority of the votes cast, counting for him first and second choice votes, another election shall be held not less than ten nor more than fifteen days thereafter. Each qualified elector in the first election may vote for "a first and second choice" for each office to be filled.

In the election held on the second Monday in September, 1937, being the thirteenth day of the month, to select a commissioner for said city, there were four candidates for the office, two of whom were R.V. Taylor and Harry T. Hartwell.

At this first election, the official results showed, that Hartwell received 3,425 first choice votes and 621 second choice votes; that R.V. Taylor received 3,039 first choice votes and 345 second choice votes; that a third candidate received 1,598 first choice votes and 1,061 second choice votes; and that the fourth candidate received 142 first choice votes and 475 second choice votes. No one having, on the face of the returns, received a majority of the first choice votes, or a majority of the votes cast, counting first and second choice votes, another election was called and held on September 27, 1937, at which second election the said R.V. Taylor was officially declared elected to the office of commissioner.

The pertinent provisions of the act of 1911 are: "At all such elections the candidate or candidates receiving the highest number of first choice votes for the office or offices to be filled shall be declared elected thereto, provided such highest number of votes be not less than a majority of the whole number of ballots cast. Should any office remain unfilled by reason of the failure of any candidate to receive a majority of the first choice votes cast, then the first choice and second choice votes of each candidate shall be added together and the candidate or candidates who shall have received the highest number of first and second choice votes together shall be declared elected provided such number be not less than a majority of the whole number of ballots cast. Should any office still remain unfilled by reason of the failure of any candidate to receive votes equal to a majority of the ballots cast, such vacancy or vacancies shall be filled by another election to be held not less than ten nor more than fifteen days thereafter. At such second election the ballots shall have printed thereon only the names of those two candidates who receive the highest number of first choice and second choice votes, when added together, at the first election; and the number of candidates whose names shall be printed on said second election ballot shall not exceed two for each office to be filled. In case of a tie vote between two candidates each of whom receives a majority of first choice votes, the one shall be deemed to have the highest number who shall have received the highest number of second choice votes. In case of a tie vote between two unelected candidates who receive an equal number of first choice votes when added together, the one shall be deemed to have the highest number who shall have received the highest number of first choice votes. No defect in the form of ballot or technicality or inaccuracy in such election or in the call, notice or conduct thereof, shall invalidate such election if the same was in substance fairly conducted and the will of the people fairly expressed thereat. Except as is otherwise provided in this act all elections for commissioners hereunder shall be conducted as provided by the general laws of this State applicable thereto, and at the expense of the city in which such election is held." Gen.Acts 1911, p. 341, § 11.

On the 2d day of October, 1937, appellant, Winston F. Groom, a duly qualified elector of said city, filed in the office of the clerk of the circuit court of Mobile (a court with statutory jurisdiction to hear and determine the contest) a contest, which dealt alone with the result of the first stage of the election held on the second Monday in September, 1937, and in the statement then filed no mention whatever is made of the "run off" election held on September 27th. This second stage of the election is required by law only in the event no candidate should receive a majority of the votes cast, counting for him first and second choice votes in the first election. The only duty imposed upon the authorities with reference to this second, or "run off," election is that they shall fix date of such election, and the law enjoins that the date shall not be less than ten nor more than fifteen days after the first election.

It abundantly appears that appellant's contest was directed to the first stage of the election and not to the second stage. His contention, in substance, was that, through manipulation of the election officers, first and second choice votes, not legally cast, were counted for Taylor, which, if taken from him, would have reduced the number of votes certified in Taylor's behalf; and that, of the remaining legal first and second choice votes cast, Harry T. Hartwell received the number sufficient to have elected him--a majority of the votes cast, counting first and second choice. If this was so, under the terms of the statute, there would have been no occasion for the second election, as the said Hartwell was entitled to the office under the first election.

The appellant's contest was filed within time to contest either election.

It appears that the court proceeded to have a hearing of the contest on October the 11th, twenty-eight days after the first election, and the record discloses on that day the contestant filed the following amendment:

"Comes the Contestant in the above styled cause, and by leave of the Court first had and obtained amends his contest proceeding by adding thereto the following averments, viz:

"1. Said

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