Perloff v. Edington

• Decision Date: 23 September 1974
• Citation: 302 So.2d 92,293 Ala. 277
• Parties: Mike PERLOFF v. Pat EDINGTON et al. SC 965.
• Court: Alabama Supreme Court

Page 92

302 So.2d 92

293 Ala. 277

Mike PERLOFF v. Pat EDINGTON et al.

SC 965.

Supreme Court of Alabama.

Sept. 23, 1974.

Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellant.

Gallalee, Denniston & Edington, Mobile, for appellees.

MERRILL, Justice.

The sole question presented in this appeal is one of law--whether the State Democratic Executive Committee and its subcommittee had jurisdiction to hear a primary election contest when the statute requiring the committee to meet not more than twenty days from the time of the filing of a contest, Tit. 17, § 386, was not complied with. We hold that the subcommittee was without jurisdiction.

Appellant, Mike Perloff, and James E. Buskey were candidates for State Senator from the 33rd Senatorial District in Mobile County. The official vote canvass in the June 4th runoff showed Perloff the winner by 393 votes. Within five days, Tit. 17, § 373, Buskey filed a document with the State Committee requesting 'a recount of votes,' which in its correspondence and notice, the committee treated as the filing of a contest. The order of the committee shows that Buskey's contest was filed on June 10. This means that Tit. 17, § 386 required the committee to meet not more than twenty days later. But the order was not made until July 8 and the subcommittee was not authorized to meet until July 16. Perloff was notified of this order on July 10, filed this petition for writ of prohibition in the circuit court to prohibit the subcommittee from meeting and the hearing was set in circuit court for July 16. At that hearing, there was some question of notice and the parties agreed to continue the hearing to September 5, 1974. On that day, Perloff appeared with counsel, the subcommittee was represented by counsel and Buskey was present and the following occurred:

'THE COURT: Come up, Mr. Buskey, if you will, please. (Mr. Buskey complied.) And tell us what you and Mr. Soloman Seay (Buskey's counsel) have decided since July 16th as to whether or not you would like to participate in this hearing.

'MR. BUSKEY: No, sir. In the matter before the Court, we have no position.

'THE COURT: You have no position?

'MR. BUSKEY: No.

'THE COURT: All right. You would just like to be present and witness what goes on?

'MR. BUSKEY: Yes, sir.'

Buskey took no part in the proceedings in this case but remained as a spectator.

The petition for writ of prohibition was denied September 6, 1974.

Appellant argues three reasons why the party subcommittee lacked jurisdiction to hear and determine the election contest:

1. The party chairman failed to call a meeting of the state committee or to appoint a subcommittee in not less than ten or more than twenty days after the filing of the contest as required by Tit. 17, § 386, Code 1940;

2. The document attempting to institute the contest was insufficient therefor because Buskey only asked for a recount instead of filing a contest.

3. A cash deposit of $50.00 was not proved as required by Tit. 17, §§ 378 and 380.

We treat only the first reason because it is clear that the state committee and its subcommittee lost jurisdiction of the contest if it ever acquired it. The chairman of the committee, and the subcommittee, treated it as a contest of a primary election and it is so treated here in our consideration of the initial point raised, although we express no opinion on the matters raised in reasons 2 and 3.

The Legislature has given the handling of political party nominations to the several political parties, even to the decision as to whether the party will nominate its candidates by primary elections or conventions. Tit. 17, § 336.

To insure that political parties would not be bothered in the handling of their nominating elections and the contests arising therein, as well as other elections of persons to office, courts have no jurisdiction except that 'specially and specifically enumerated and set down by statute.' Tit. 17, § 235. This court has followed the statute in Ex parte Skidmore, 277 Ala. 221, 168 So.2d 483, and the cases therein cited.

In effect, the Legislature has said that political parties can run their party affairs without interruption by the courts, but those affairs must be run within the rules laid down by the Legislature.

One of the reasons for this rule in election contests is that time is of the essence in an election contest. The party committee, or its subcommittee, can act more speedily than the courts and can devote its time to one contest, where the courts are occupied with all types of litigation.

The right to contest an election is given by virtue of the statutes and 'it must be instituted and presented within the 'jurisdiction' etc., and as prescribed by law, and by a person so authorized.' Garrett v. Cuninghame, 211 Ala. 430, 100 So. 845.

In Pearson v. Alverson, 160 Ala. 265, 49 So. 756, the court stated:

'Election contests are special statutory proceedings, and, according to the best authorities, which have been followed by our own court, are to be strictly construed as to those provisions for inaugurating the contest, and which are necessary to jurisdiction. A short time limit is fixed, because it is important that such matters should be determined as speedily as possible for the public good. It is accordingly held that, if the petition is defective as to any of the statutory requirements, it cannot be amended after the expiration of the time limited for commencing the contest. To construe the law otherwise would render the time limit of the statute ineffective. The giving of security according to the statute is also a jurisdictional requirement. * * *' Also, in Longshore v. City of Homewood, 277 Ala. 444, 171 So.2d 453, this court said:

'Further, election contests exist only by virtue of statutory enactment and such statutes are to be strictly construed.--Groom v. Taylor, 235 Ala. 247, 178 So. 33. 'The right to contest an election is not a common-law right (Cosby v. Moore, 259 Ala. 41, 65 So.2d 178). Elections belong to the political branch of the government, and, in absence of special constitutional or statutory provisions, are beyond the control of judicial power.' 29 C.J.S. Elections § 246. Further at § 247 the rule is stated that statutes providing for election contests 'should be strictly construed or observed as to those provisions for inaugurating the contest and which are necessary to jurisdiction (citing Walker v. Junior, 247 Ala. 342, 24 So.2d 431, 165 A.L.R. 1257; Groom v. Taylor, supra). * * *''

We come now to the statutory rule alleged and admitted by stipulation to have been violated. Title 17, § 386 states that the chairman of the State Executive Committee 'shall' call a meeting of the committee, or a subcommittee, 'to meet at a time not less than ten nor more than twenty days from the time of filing such contest for the purpose of hearing and determining the same, * * *.'

In Prather v. Ray, 258 Ala. 106, 61 So.2d 46, it was said:

'* * * Upon the filing of a contest with him, the Chairman Must call the Committee to meet at a time not less than ten days nor more than twenty days from the time of filing of the contest, for the purpose of hearing and determining the same, or, without calling the Committee to meet, the Chairman may appoint a subcommittee as provided in § 394, Title 17, Code 1940. § 386, Title 17, Code 1940.' (Emphasis supplied.)

In the early case of Black v. Pate, 130 Ala. 514, 30 So. 434, the court said:

'Contests of election being unauthorized except by statute, any material departure from the statutory mode of instituting and conducting such contests is likewise unauthorized. This is especially true in respect of the limitation of time contained in the statute regulating contests for the office of sheriff which provides: 'The person contesting must file in the office of the judge of probate of the county in which the election was held, within fifteen days after the result of the election has been declared, a statement in writing of the grounds of contest verified by affidavit.'--Code, § 1697. This and several other provisions of the statute are made to hasten the termination of such contests in view of the fact that it is important to the public as well as the parties that the office be...