Mitchell v. Kinney
Decision Date | 15 January 1942 |
Docket Number | 6 Div. 805. |
Parties | Michell v. Kinney. |
Court | Alabama 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.
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:
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:
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: * * * "
In Ex parte Hartwell, 238 Ala. 62, 188 So. 891, 895, is the quotation which follows:
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 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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