Mitchell v. Kinney

Decision Date15 January 1942
Docket Number6 Div. 805.
PartiesMichell v. Kinney.
CourtAlabama Supreme Court

[Copyrighted Material Omitted]

Appeal from Circuit Court, Cullman County; J.H Disque, jr., judge.

Beddow Ray & Jones and Roderick Beddow, all of Birmingham, and Harris & Harris and Norman W. Harris, all of Decatur, for appellant.

F.E. St. John and F.E. St. John, Jr., both of Cullman, and Clarence Mullins and Harvey Deramus, both of Birmingham, for appellee.

THOMAS, Justice.

The several assignments of error challenge the finding of facts and the judgment rendered thereon. There were several rulings by the trial court, in excluding and admitting evidence against objection by respective parties, that will be considered later.

It will be noted that a material part of the testimony was taken ore tenus before the trial judge. His findings and judgment under the rule that obtains in this jurisdiction, will not be disturbed on appeal unless palpably wrong. Andrews v. Grey, 199 Ala. 152, 74 So. 62; Hodge v. Joy, 207 Ala. 198, 92 So. 171; Pate v. Pate, 236 Ala. 320, 181 So. 750.

This is a proceeding instituted by Homer F. Mitchell to contest the election of H.H. Kinney to the office of Judge of the Probate Court of Cullman County, Alabama, at the general election held on November 5, 1940, and was filed and conducted in accordance with the provisions of §§ 545, 550, 552, 559, 560 and 564 of the Code of Alabama of 1923, Code 1940, T. 17, §§ 231, 236, 238, 245, 246, 250.

Upon the trial in the circuit court, judgment was rendered by the presiding judge for the contestee and this appeal was taken by contestant under provisions of §§ 566 and 567 of the Code of Alabama of 1923, Code 1940, T. 17, §§ 252, 253.

The statement of contestant as originally filed contained many grounds, but it was later amended so that the only grounds of contest set forth were subdivision (a) of paragraph 4 and subdivisions (b), (c) and (d) of paragraph 4, as amended. The effect of these grounds was to raise the point that the contestee was not eligible to the office at the time of the election, Code 1923, § 545, subd. 2, Code 1940, T. 17, § 231. Section 545, subd. 2 of the Code of 1923 reads as follows: "When the person whose election to office is contested was not eligible thereto at the time of such election."

Contestant did not seek a judgment investing himself with the right to the office, but only sought a judgment declaring contestee ineligible, his election void, and ordering such fact certified to the appointing power. Code 1923,§ 564, Code 1940, T. 17, § 250.

The contestant's theory of the case, alleged in various ways that contestee was ineligible to hold the office in question on the date of his election, for that on that date he was not a qualified voter or elector.

Contestant's allegations going to show that contestee was not a qualified elector were based on the holding in Shepherd v. Sartain, 185 Ala. 439, 64 So. 57, 64, to the effect that the poll tax due by a citizen of Alabama must be paid in the county in which the citizen legally resides at the time the poll tax becomes due, and that payment of it in any other county is unauthorized, and without effect. The circuit court accepted this theory of the law and followed the Shepherd Case, supra, by overruling contestee's demurrer to the statement of contest. It was held in that case as follows:

"A poll tax must be paid in the county in which the voter legally resides at the time it became due, and payment elsewhere is unauthorized and without effect. Aside from considerations of general policy and propriety, this requirement is fairly implied by section 1769 of the Code, and section 259 of the Constitution, which gives to each county for school money all the poll taxes collected therein. This allotment should not be defeated by the payment of these taxes in foreign counties."

Contestant's contention as to the facts relative to contestee's ineligibility was that on October 1, 1930, or on October 1, 1931, or on October 1, 1932, contestee resided in and had his domicile in Jefferson County, Alabama, and being on said respective dates an inhabitant of Alabama between the ages of 21 and 45 years, he was due to have paid his poll tax for the respective tax years beginning on said respective dates in Jefferson County, and having without dispute failed to pay such poll taxes in Jefferson County, contestee was not a qualified elector.

Contestee's theory was that he acquired a domicile in Cullman County, Alabama, immediately after August 27, 1927, retained that domicile continuously until the date of his election, and, having without dispute paid in that county all poll taxes due by him, was a duly qualified elector. Contestee sought to show that he acquired a domicile in Cullman County, Alabama, in 1927, by his own acts and by testimony tending to show that his mother acquired such domicile immediately after his father's death. He relied on the principle that the domicile of a minor, whose father is dead, follows that of the mother and that he acquiesced therein, so acting as to that domicile.

We may observe here that the public policy of this state as to construction and application of the election laws has found expression in many decisions. For example, in Garrett v. Cuninghame, 211 Ala. 430, 438, 100 So. 845, 853, it was said:

" * * * Mr. Freeman, in his comprehensive note on Patton v. Watkins, supra (131 Ala. 387, 31 So. 93), reported in 90 Am.St.Rep. 43, 49, said the trend of American authority is summed up in this statement:

" ' "All the provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but after election all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void." Jones v. State, 153 Ind. 440, 55 N.E. 229. The same doctrine has been expressed in numerous decisions. See, especially, Taylor v. Taylor, 10 Minn. 107; Russell v. McDowell, 83 Cal. 70, 23 P. 183; Fowler v. State, 68 Tex. 30, 3 S.W. 255.' (Italics supplied.)" [Parenthesis supplied in first paragraph of quotation.]

In McCall et al. v. Automatic Voting Mach. Corp. et al., 236 Ala. 10, 15, 180 So. 695, 700, Mr. Justice Knight makes the following observation: "As well said by Justice Thomas in the case of Garrett v. Cunninghame, 211 Ala. 430, 100 So. 845, 854: 'The provisions of our Constitution (sections 179, 189, 190) and of the statute are to preserve the untrammeled expression of the choice of the elector, to the end that no qualified elector be deprived of the privilege that is accorded by law to vote, and may freely and intelligently cast his or her vote under the Constitution and statutes.' It was the safeguarding of this right that was in mind of the framers of the Constitution; and matters of detail, whether the ballot should be marked by pencil or pen, on paper, or whether the mark should be made by pulling a lever on a mechanical device was not in their thought. * * * "

In Ex parte Hartwell, 238 Ala. 62, 188 So. 891, 895, is the quotation which follows:

"From McCrary on Elections (4th Ed.), § 454, p. 333, we quote the following: 'A contested election case, whatever the form of the proceeding may be, is in its essence a proceeding in which the people--the constituency--are primarily and principally interested. It is not a suit for the adjudication and settlement of private rights simply. It follows that the parties to the record can not, by stipulation or otherwise, discontinue or compromise a case of this character without the consent and approval of the court or tribunal trying it. Nor should such consent ever be given, unless the Court giving it is sufficiently advised to be able to say that it is for the interest of the public to do so.' Mann v. Cassidy, 1 Brewst, Pa., 11, 43; People v. Holden, 28 Cal. [123], 139.

* * *

* * *

"The above observation has application to the contest of elections to public office, such offices being designed to serve the people justly, and by agents of their selection as prescribed in the Constitution and statutes, in the due exercise of a public privilege which the legislature has regulated in respects not prohibited by the organic law. Garrett v. Cuninghame, 211 Ala. 430, 100 So. 845."

This important question was again considered in Ex parte State ex rel. Bragg, 240 Ala. 80, 84, 85, 197 So. 32, 36, where it was declared: "The selection of party nominees for public office is essentially a political function. The Legislature may safeguard primary elections for that purpose; and all persons have the legal duty, sometimes under penalty, to obey such laws. The party is or should be concerned that its nominees in a primary held at its election should be in fact the choice of the majority of legal voters. Its representatives should frown upon every species of fraud or disregard of law which tends to defeat the exercise of the elective franchise and bring Democratic processes into disrepute."

The foregoing indicates, in a general way, the necessary and incidental requirements for the election to public office as prescribed by the Constitution and the several statutes. These provisions extend from the due designation or selection of the candidate by the party or party presenting candidates and placing of their names on the ballot to be used by the electors, the due holding of all elections (primary and general elections),...

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  • Eubanks v. Hale
    • United States
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    ...and palpably wrong and not supported by the evidence." Williams v. Lide, 628 So.2d 531, 534 (Ala. 1993), citing Mitchell v. Kinney, 242 Ala. 196, 200, 5 So.2d 788, 797 (1942). That same principle of law is also stated in such cases as Gaston v. Ames, 514 So.2d 877 (Ala.1987), and Cougar Min......
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