Jansen v. State ex rel. Downing

• Decision Date: 18 January 1962
• Docket Number: 1 Div. 32
• Citation: 137 So.2d 47,273 Ala. 166
• Parties: V. R. JANSEN, Judge of the Probate Court of Mobile County, v. STATE of Alabama ex rel. Maurice A. DOWNING.
• Court: Alabama Supreme Court

Page 47

137 So.2d 47

273 Ala. 166

V. R. JANSEN, Judge of the Probate Court of Mobile County, v. STATE of Alabama ex rel. Maurice A. DOWNING.

1 Div. 32.

Supreme Court of Alabama.

Jan. 18, 1962.

V. R. Jansen and Pillans, Reams, Tappan, Wood & Roberts and A. L. Phillips, Jr., Mobile, for appellant.

Maurice A. Downing, appellee, pro se.

W. Dewitt Reams, Mobile, for Frank W. Boykin, amicus curiae.

Jas. E. Moore, Mobile, Hobdy G. Rains, Gadsden, Ralph Y. Smith and Frank J. Mizell, Montgomery, for State Democratic Executive Committee, amici curiae.

GOODWYN, Justice.

This case involves the validity of Act No. 154, appvd. Sept. 15, 1961, which was passed at the 1961 Special Session of the Legislature. The Act provides for the manner of nominating candidates for Congress in primary elections and electing congressmen in statewide general elections, subject to certain contingencies set forth in the Act. It has been referred to as the '9-8 Plan' and is a legislative design, in lieu of redistricting, for meeting the reduction in the number of Alabama congressmen from nine to eight.

The trial court declared the Act to be invalid and enjoined the probate judge of Mobile County, the respondent and crosscomplainant in the proceedings below, 'from obligating Mobile County for the expense of preparation for an election pursuant to the provisions of said Senate Bill 224 [Act No. 154] and * * * from attempting to comply with the terms of Senate Bill 224 [Act No. 154] by the use of paper ballots at any primary or general elections hereafter conducted in Mobile County,' The probate judge brings this appeal from that decree.

In view of the time elements involved, the importance of and wide public interest in the validity vel non of Act No. 154, and the reasonable probabilities that the contingencies therein stated will not prevent its application, if valid, to congressional elections to be held this year, we put to one side any procedural question which might be presented and proceed to a decision on the merits.

What we have to decide is whether the Act is either violative of one of the following provisions of the Alabama Constitution, viz.: § 104, subdiv. 29, § 190, or Amendment 41, or is so incomplete, vague, uncertain and indefinite as to make it inoperative and void. We approach these questions in the light of the following well-established principles:

In passing on the validity of a statute it must be remembered that the legislature, except insofar as specifically limited by the state and federal constitutions, is all-powerful in dealing with matters of legislation; that a legislative act is presumed to be constitutional and valid, and all doubts are to be resolved in favor of its validity; that a statute, if reasonably possible, must be so construed as to sustain its validity and will not be declared invalid unless the court is clearly convinced that it cannot stand; that all questions of propriety, wisdom, necessity, utility and expediency in the enactment of laws are exclusively for the legislature, and are matters with which the courts have no concern.

With these principles in mind, we have concluded that the trial court erred in declaring Act No. 154 to be invalid.

First, we will dispose of the constitutional questions.

Section 104, subdiv. 29, Constitution 1901, provides as follows:

'Sec. 104. The Legislature shall not pass a special, private, or local law in any of the following cases:

* * *

* * *

'(29) Providing for the conduct of elections or designating places of voting, or changing the boundaries of wards, precincts, or districts, except in the event of the organization of new counties, or the changing of the lines of old counties; * * *,'

Section 110, Constitution 1901, contains these definitions '* * * [A] local law is a law which applies to any political subdivision or subdivisions of the state less than the whole; a special or private law within the meaning of this article is one which applies to an individual, association, or corporation.'

Act No. 154 has statewide application, and is not restricted to a political subdivision or subdivisions of the state less than the whole; nor does it apply to an individual, association, or corporation. Accordingly, the Act is not violative of § 104, subdiv. 29, of the Constitution.

Section 190, Constitution 1901, provides, in pertinent part, as follows:

'The legislature shall pass laws not inconsistent with this constitution to regulate and govern elections (a) 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, * * *.'

Amendment 41, proclaimed ratified on July 21, 1939, changed the foregoing portion of § 190 to read as follows:

'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 except that the Legislature may, by general or local law, permit the use of voting machines or other mechanical devices, for registering, recording and computing the votes at all elections, including primary elections, in any county, municipality, or other political subdivision of the State, under such regulations provided by general law with reference thereto as the legislature may from time to time prescribe; and shall provide by law for the manner of holding elections and of ascertaining the result of the same, * * *.'

It is contended that this part of Amendment 41 makes it mandatory that voting machines, if authorized and used in a county, as is the case in Mobile County, must be used in all elections; that Act No. 154 provides for the use of paper ballots in voting for eight of the nine candidates for nomination as congressmen at the time of the regular run-off primary, thus contravening Amendment 41 and rendering the Act invalid. We cannot agree. It has been held that this Amendment 'is not self-acting, but requires enabling legislation. It is not mandatory, but grants authority to the legislature so as to relieve the former requirement of uniformity throughout the state in this respect. The constitutional amendment was evidently the result of the decision of this court in McCall v. Automatic Voting Machine Corp., 236 Ala. 10, 180 So. 695.' Kendrick v. State ex rel. Shoemaker, 256 Ala. 206, 212, 54 So.2d 442.

Of significance is the fact that the legislature, in adopting enabling legislation very shortly after ratification of Amendment 41, provided for the optional use of paper ballots in precincts having less than 100 registered voters. Code 1940, Tit. 17, § 94; Act No. 292, § 4(c), appvd. Aug. 25, 1939, Gen.Acts 1939, pp. 443, 447. This was a clear legislative interpretation of Amendment 41 that the use of...