Kinney v. House

• Decision Date: 29 October 1942
• Docket Number: 6 Div. 94.
• Citation: 243 Ala. 393,10 So.2d 167
• Parties: KINNEY, Judge of Probate Court, v. HOUSE et al.
• Court: Alabama Supreme Court

10 So.2d 167

243 Ala. 393

KINNEY, Judge of Probate Court, v. HOUSE et al.

6 Div. 94.

Supreme Court of Alabama

October 29, 1942

Rehearing Denied Oct. 31, 1942.

Appeal from Circuit Court, Cullman County; Seybourn H. Lynne Judge.

The petition alleges that on August 11, 1942, the second Tuesday in said month, a mass meeting of the Republican party convened and was held at the court house in Cullman County for the purpose, among others, of nominating candidates of said party for certain county offices in the general election to be held November 3rd. At said meeting it was duly determined and resolved that nomination of the party's candidates for public offices in said county to be voted on at said general election be made by a nominating committee which committee was then and there duly elected and appointed and given full power to nominate the candidates of the party. Thereafter, September 12th, said committee met and nominated the petitioners as candidates for the offices in question. On October 3rd the chairman and secretary of said mass meeting filed in the office of the respondent the following certificate, sworn to and subscribed before a notary public, viz:

"To Hon. H. H. Kinney,

"Judge of Probate of

"Cullman County, Ala.

"We the undersigned duly elected chairman and secretary of a mass meeting of the Republican Party of Cullman County, Alabama duly called according to law, and convened on the 11th day of August, 1942, at the court house in Cullman, Alabama, hereby certify that a Republican County Mass Meeting convened at the court house in Cullman, Alabama, on August 11, 1942, for the purpose of nominating candidates to be voted on in the general election to be held November 3, 1942, for Cullman County, Alabama. We further certify that said Mass Meeting, through its duly elected committee, nominated the following candidates for the following offices, to-wit:

"For Sheriff: Herman E. House

"For Tax Assessor: Ottis C. Hall

"For Tax Collector: Howell J. Batemon

"For Member of School Board: W. E. Pattillo.

"Henry F. Arnold

----------------

"Chairman

"T. M. Bailey

----------------

"Secretary."

Respondent, on October 10th, advised petitioners that it would be necessary that he determine whether or not said mass meeting was held in compliance with the law, and to that end a hearing would be held on October 12th. Petitioners attended said hearing, protested that respondent had no authority to hold the same and demanded that their names be printed upon the ballots. After said hearing respondent declared petitioners' nominations to be invalid and declined to print their names upon the ballots.

Respondent's answer to the petition sets up that a mass meeting of the Republican party was held on August 11th, but that said meeting adjourned without nominating any of the petitioners as candidates for the offices in question, but nominations were made at a mass meeting held on September 12th, at a time not authorized by law, and that the action of said meeting in nominating candidates was null and void.

The evidence tends to show that at said mass meeting held on August 11th the matter of making nomination of the party's candidates was brought up and a motion was duly made and carried that the beat committeemen in each beat of the county be made a nominating committee, with full power to nominate the candidates of the party for the general election, and that that committee meet back at the court house on September 12th to announce or to make the party's nominations. It was resolved that the mass meeting recess or adjourn to meet back again at the court house on September 12th. On said September 12th the nominating committee and the mass meeting met pursuant to said motion and said resolution, and petitioners were nominated for the offices shown by the certificate by said nominating committee.

St. John & St. John, of Cullman, and Mullins & Deramus, of Birmingham, for appellant.

Julian Harris and Norman W. Harris, both of Decatur, for appellees.

PER CURIAM.

Petitioners seek mandamus to have the Probate Judge of Cullman County place their names upon the printed ballot for the election of November 3rd next as candidates of the Republican Party for the several offices for which they claim to have been nominated. It is first insisted that the Judge of Probate in so having the ballots printed acts in a ministerial capacity and is without authority to question the right of the petitioners in that respect. In Section 145 of Title 17, Code 1940, the Judge of Probate is to print the names of the candidates on the ballots but there is no provision that a certificate of nomination shall be conclusive. The certificate in the instant case is equivocal to such an extent as to put the Probate Judge upon inquiry that the nominations were not in accord with the statute. The Probate Judge need not proceed blindly in...