Jones v. Phillips, 3 Div. 232

• Decision Date: 12 April 1966
• Docket Number: 3 Div. 232
• Citation: 185 So.2d 378,279 Ala. 354
• Parties: J. Fletcher JONES v. William Edward PHILLIPS.
• Court: Alabama Supreme Court

Page 378

185 So.2d 378

279 Ala. 354

J. Fletcher JONES v. William Edward PHILLIPS.

3 Div. 232.

Supreme Court of Alabama.

April 12, 1966.

Ira DeMent, Montgomery, for appellant.

Steiner, Crum, & Baker, Montgomery, Powell & Hamilton, Greenville, for appellee.

MERRILL, Justice.

Appellee Phillips filed a verified bill of complaint in the Circuit Court of Butler County, seeking to enjoin the Probate Judges of Butler, Covington, Crenshaw and Lowndes Counties, comprising the Twentieth Senatorial District, from placing the name of appellant Jones on the ballot in the Democratic Party primary election to be held on May 3, 1966. A temporary injunction was issued on March 18, 1966, and appellant intervened. After preliminary proceedings, a motion to dissolve was denied and Jones appealed.

The bill charged that appellant failed to comply with the provisions of Tit. 17, § 274, Code 1940, as amended, and asked that the penalty provided in Sec. 275 for violating Sec. 274, i.e., 'the name of such candidate so failing shall not be allowed to go upon the ballot at such election,' be applied.

Title 17, §§ 274 and 275, provide:

' § 274. Within five days after the announcement of his candidacy for any office, each candidate for a state office shall file with the secretary of state, and each candidate for a county office or the state house of representatives shall file with the judge of probate of the county, and each candidate for a circuit or district office, including the state senate, shall file with the judge of probate of each county which is embodied in said circuit or district, a statement showing the name of not less than one nor more than five persons elected to receive, expend, audit, and disburse all moneys contributed, donated, subscribed, or in any way furnished or raised for the purpose of aiding or promoting the nomination or election of such candidate, together with a written acceptance or consent of such persons to act as such committee, but any candidate, if he sees fit to do so, may declare himself as the person chosen for such purpose. If the statement requires herein shall have been postmarked at any United States post office not later than midnight of the fifth day after the announcement of his candidacy, the candidate shall be deemed to have complied with the requirements of this section as to filing such statement within five days after the announcement of his candidacy. Such committees shall appoint one of their number to act as treasurer, who shall receive and disburse all moneys received by said committee; he shall keep detailed account of receipts, payments and liabilities. The said committee or its treasurer shall have the exclusive custody of all moneys contributed, donated, subscribed, or in any wise furnished for or on behalf of the candidate represented by said committee, and shall disburse the same on proper vouchers. If any vacancies be created by death or resignation or any other cause on said committees, said candidate may fill such vacancies, or the remaining members shall discharge and complete the duties required of said committee as if such a vacancy had not been created. No candidate for nomination or election shall expend any money directly or indirectly in aid of his nomination or election except by contributing to the committee designated by him as aforesaid.'

' § 275. Any person who shall act as his own committee shall be governed by the provisions of this article relating to committees designated by candidates. Failure to make the declaration of appointment or selection by any candidate as herein required is declared to be a corrupt practice, and in addition the name of such candidate so failing shall not be allowed to go upon the ballot at such election.'

The facts are not disputed. Jones filed his declaration of candidacy with the Chairman of the State Democratic Executive Committee on January 22, 1966, and a copy of that declaration was filed with the Secretary of State the same day. The forms of the declaration used by appellant in filing with these officers met the requirements of Tit. 17, § 274, as amended.

But appellant did not file these forms or any statement meeting the requirements of Sec. 274 with the probate judges of the counties comprising his senatorial district within five days. He filed a form with the probate judges as follows: Covington County on February 26, 1966; Butler, Crenshaw and Lowndes Counties on March 8, 1966.

The trial question to be decided is whether the provisions of Sec. 274, as amended, are mandatory or directory. The trial court held them to be mandatory.

Appellant raises two preliminary points with which we cannot agree. First, he contends that appellee Phillips has no standing to invoke the jurisdiction of a court of equity as a mere taxpayer, voter and resident of the Twentieth Senatorial District. Without discussing the cases in detail, we cite the following as authority for the courts exercising control over elections. McCutcheon v. Thomas, 261 Ala. 688, 75 So.2d 649; Boyd v. Garrison, 246 Ala. 122, 19 So.2d 385; Kinney v. House, 243 Ala. 393, 10 So.2d 167; Wakefield v. Town of Carbon Hill, 215 Ala. 22, 108 So. 855; Dennis v. Prather, 212 Ala. 449, 103 So. 59; Garrett v. Cuninghame, 211 Ala. 430, 100 So. 845; Petree v. McMurray, 210 Ala. 639, 98 So. 782.

The second point is that Tit. 17, § 274, as amended, is unconstitutional because it violates Sec. 190 of our Constitution, which requires uniformity in election laws. It is argued that a candidate for governor and a candidate for state senator are each candidates for a state office, but Sec. 274 requires a candidate for governor to file his declaration with the Secretary of State only, while a candidate for state senator must file with the Secretary of State and the judges of probate in his senatorial district.

It is sufficient to say that a candidate for governor and a candidate for the legislature are in separate classifications. The governor runs statewide--in every county of the state. A candidate for the legislature runs from one county or a district composed of more than one county, but less than statewide.

We come now to the real question--whether the provisions of Sec. 274, as amended, are mandatory. We conclude that they are insofar as the forthcoming primary election to be held on May 3, 1966, is concerned.

An announcement of candidacy in a primary election, under Tit. 17, § 274, as amended, is made when the candidate files his official declaration of candidacy in the form prescribed by the governing body of the party with the Chairman of the County Executive Committee, if he be a candidate for a county office, or with the Chairman of the State Executive Committee, if he be a candidate for any office except a county office, and this declaration must be filed with the proper chairman not later than March first, next preceding the holding of such primary election. Tit. 17, § 348, Code 1940.

Here, appellant's official announcement of candidacy was on January 22, 1966. He had five days from that date to comply with Sec. 274. This he did not do. This was just as much a part of his qualification as a candidate as was the paying of his qualification fee to the proper chairman of his party. The penalty provided for failure is that his name shall not go on the ballot. Tit. 17, § 275.

What is now Tit. 17, §§ 274 and 275 were enacted in 1915, and Sec. 275 has not been amended. But in 1959, the legislature, of which appellant was a member, amended the five-day...