Kendrick v. State ex rel. Shoemaker

• Decision Date: 04 October 1951
• Docket Number: 6 Div. 9
• Citation: 54 So.2d 442,256 Ala. 206
• Parties: KENDRICK et al. v. STATE ex rel. SHOEMAKER.
• Court: Alabama Supreme Court

Page 442

54 So.2d 442

256 Ala. 206

KENDRICK et al. v. STATE ex rel. SHOEMAKER.

6 Div. 9.

Supreme Court of Alabama.

Oct. 4, 1951.

John S. Foster and Maurice F. Bishop, Birmingham, for appellants.

Jerome Phillips and John T. Batten, Birmingham, for appellee.

LAWSON, Justice.

This is a mandamus proceeding filed in the circuit court of Jefferson County in the name of the State of Alabama on the relation of J. G. Shoemaker, as a voter, citizen and taxpayer of Jefferson County, against the County Commission of Jefferson County, W. D. Kendrick individually and as president of said commission, Earl Bruner, individually and as associate commissioner, and Charles E. Harrison individually and as associate commissioner.

The purpose of the proceeding was to secure an order commanding the County Commission, the governing body of Jefferson County, to furnish and provide voting machines for use in all primary, special and general elections held in Jefferson County.

Upon the filing of the petition it was ordered that an alternative writ of mandamus issue commanding the respondents to furnish and provide voting machines as prayed, or show cause why they should not be compelled to do so.

The alternative writ of mandamus is not process merely, but both process and pleading. Longshore, Judge, etc. v. State ex rel. Turner, 137 Ala. 636, 34 So. 684; Garrett, Sheriff v. Cobb, 199 Ala. 80, 74 So. 226.

Answer was filed to the alternative writ of mandamus wherein several defenses were set up. The answer was twice amended. Relator demurred to the answer as amended. The demurrer was overruled; thereupon relator filed his replication to the answer as amended.

The case was submitted to the court on an agreement or stipulation of the parties and on oral testimony.

After taking the case under advisement, the trial court rendered a judgment ordering that the peremptory writ issue 'to the said Honorable W. D. Kendrick in his capacity as President of the County, and the Honorables of Jefferson County, and the Honorables Earl Bruner and Charles E. Harrison as members of the County Commission of Jefferson County ordering, directing and commanding them to furnish and provide voting machines for use in all primary, special and general elections in Jefferson County, according to the provisions of Article 7 of Title 17 of the Alabama Code of 1940.' The peremptory writ issued as ordered.

From the judgment awarding the peremptory writ of mandamus the respondents have appealed to this court.

On July 21, 1939, the Governor proclaimed ratified an amendment to the Constitution of this state, the purpose of which was to grant authority to the legislature, by general or local law, to permit the use of voting machines 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. Const.1901, § 190; Amend. No. 41.

The constitutional 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.

Enabling legislation was adopted. General Acts 1939, p. 443; see §§ 91-119, Title 17, Code 1940. For amendments and additions made to the Voting Machine Law, see 1949 Cum.Pocket Part, Vol. 4, Code 1940, Title 17, §§ 91-115(1).

In Abrasley v. Jefferson County, 241 Ala. 660, 4 So.2d 153, 156, we dealt with certain phases of the voting machine law. In that case it was shown that more than thirty days prior to November 5, 1940, a petition signed by the requisite number of voters was duly filed with the County Commission of Jefferson County, requesting the Commission to submit to the qualified electors of the county the question, 'Shall Voting Machines be used in Jefferson County'? An election to determine that question was duly called and was held on November 5, 1940, pursuant to the petition. A majority of the voters participating therein voted 'yes.'

Abrasley instituted a declaratory judgment proceeding in the circuit court of Jefferson County against Jefferson County, the County Commission thereof and the individuals composing the Commission, the City of Birmingham, the Commission of the City of Birmingham, and the individuals composing said Commission, to determine and declare the rights and status of the parties with respect to the Voting Machine Law. From a judgment declaring the rights of the parties Abrasley appealed to this court. We modified the judgment appealed from and, as modified, the judgment was affirmed.

In part we held: (1) That since the election wherein it was determined that voting machines should be used was county-wide, there being no separate election on the question in the City of Birmingham, it was incumbent upon the County to furnish such machines for all elections whether general, primary, or special, including municipal elections; (2) that under such an election the City of Birmingham was neither required nor authorized to purchase or rent voting machines for use in municipal primary or municipal general elections to be held in the City of Birmingham; (3) that the authority and duty imposed on the County to furnish such machines could only be exercised within the limitation of indebtedness fixed by § 224 of the Constitution of 1901; (4) that if Jefferson County owed debts equal to its constitutional debt limit, it could not incur an additional debt by leasing the voting machines for one or more years, with or without an option to buy them, or enter into an obligation to do so whereby it is undertaken to bind the county to pay for their use a stipulated amount, without making it payable solely out of revenues of the county collected during the year in which they are used for which the payment shall be made; (5) that the County could, without violating § 224 of the Constitution, rent the machines for use in any election in the County or in any precinct or municipality in the County in which they are required by law to be used, and bind itself to pay for their use only out of current annual county revenue in preference to other claims not preferred by law over such an obligation, but it could not be in the form of an unconditional obligation so as to be extended to subsequent years for payment, in event of an insufficiency of current revenues.

The decision in the Abrasley case, supra, was rendered by this court on July 29, 1941, and application for rehearing denied October 23, 1941.

This proceeding to required the County to install voting machines under the mandate of the people expressed in the election held on November 5, 1940, was filed on October 3, 1949.

It is insisted here that the petition for mandamus was insufficient and that, therefore, the trial court erred in rendering the judgment ordering the issuance of the peremptory writ.

In State ex rel. Gaston v. Cunninghame, 216 Ala. 423, 426, 113 So. 309, 312, cited by counsel for appellants, we said: 'With us mandamus is a civil proceeding or remedy, commenced by petition, and the petition constitutes the first pleading in the case, and where, as here, it seeks to compel official action, it is incumbent on the petitioner to show, by averments, as well as proof, a specific legal right in the petitioner to have the act performed, and that the respondents are under duty and have the authority to do the act (Lewis et al. v. Jenkins, 215 Ala. 680, 112 So. 205; Home Guano Co. v. State ex rel. Pike, 193 Ala. 548, 69 So. 419; 13 Ency. P. & P. 672); and, if the averments do not show such right the petition will be dismissed, although its averments are not controverted or denied (State ex rel. Almon v. Burke, Judge, etc., 160 Ala. 163, 48 So. 1035; 26 Cyc. 471[b]; State ex rel. King et al. v. Pearce, Judge etc., 14 Ala.App. 628, 71 So. 656).'

It is argued that the petition fails to aver or show any right in petitioner to require appellants, respondents below, to provide voting machines, in that there are no averments to the effect that petitioner votes in a precinct where there are at least 100 registered voters, or in which the majority of the registered voters have petitioned for the installation of a voting machine. This insistence seems to be based on the provisions of § 94, Title 17, Code 1940, to the effect that the governing body may in its discretion elect not to install voting machines in any ward or precinct or beat having less than 100 registered voters unless petitioned to install such a machine by a majority of the registered voters in any such ward or precinct or beat. As before indicated, the petition alleges that petitioner is a voter, citizen and taxpayer of Jefferson County. It is now the settled rule in Alabama that a mandamus proceeding to compel a public officer to perform a legal duty in which the public has an interest, as distinguished from an official duty affecting a private interest merely, is properly brought in the name of the State on the relation of one or more persons interested in the performance of such duty to the public; but if the matter concerns the sovereign rights of the State, it must be instituted on the relation of the Attorney General, the law officer of the State. Marshall County Board of Education v. State ex rel. Williams, 252 Ala. 547, 42 So.2d 24; Gray v. State ex rel. Garrison, 231 Ala. 229, 164 So. 293, and cases cited. It is clear that the act which petitioner seeks to have performed does not concern the sovereign rights of the State and is one in which the public, all the people of Jefferson County, have an interest. Petitioner's right to have the act performed is not dependent upon the fact that he may or may not vote in a voting place...