Prather v. Ray, 6 Div. 368
| Decision Date | 30 June 1952 |
| Docket Number | 6 Div. 368 |
| Citation | 61 So.2d 46,258 Ala. 106 |
| Parties | PRATHER et al. v. RAY et al. |
| Court | Alabama Supreme Court |
Wm. S. Pritchard and Victor H. Smith, Birmingham, for appellants.
Roy L. Smith, Phenix City, Harold M. Cook, Birmingham, and John C. Godbold, Montgomery, for appellees.
Appellants and appellees were all candidates in the Democratic Primary held on May 2, 1950, for membership on the State Democratic Executive Committee of Alabama from the Third Congressional District. The State Democratic Executive Committee of Alabama will be referred to hereafter as the State Committee.
Appellees and four persons other than appellants were declared elected to the State Committee from the Third Congressional District. Appellants were not declared elected, there being only eight members of the State Committee from each Congressional District.
Proceedings were instituted contesting the election of appellees. The Chairman of the State Committee appointed a subcommittee to conduct the contest proceedings. Litigation ensued wherein the jurisdiction of the subcommittee was challenged. The subcommittee's jurisdiction was upheld. Ex parte May, 253 Ala. 684, 46 So.2d 836; Ex parte May, 254 Ala. 180, 47 So.2d 640; Bridges v. McCorvey, 254 Ala. 677, 49 So.2d 546. See Ex parte May, 254 Ala. 626, 49 So.2d 551.
After this litigation was terminated, the subcommittee proceeded to hear the contests and on January 3, 1951, upheld the contestants and declared that appellees were not elected to the State Committee from the Third Congressional District. On the same day the Chairman of the subcommittee addressed a communication to the Secretary of State advising that officer of the result of the contests and that appellants and four other persons, not appellees, were duly elected to membership on the State Committee from the Third Congressional District. A similar communication was addressed to the Chairman of the State Committee. On January 4, 1951, the Chairman of the State Committee, in his capacity as such and in his capacity as Chairman and Secretary of the canvassing board of the State Committee, filed in the office of the Secretary of State a certificate stating and showing that appellants and four other persons, not appellees, were duly elected as members of the State Committee from the Third Congressional District.
The members of the State Committee elected in the Democratic Primary held on May 2, 1950, assembled in the City of Montgomery on January 15, 1951, and adopted the following resolution:
'Whereas, the final returns from the Democratic Primary Election held May 2, 1950, show that Neil O. Davis, Jack M. Bridges, W. L. Horn and Grover C. Hughes and each of them were duly elected as members of the State Democratic Executive Committee of Alabama from the Third Congressional District of Alabama for the term beginning on Monday, January 15, 1951; and
'Whereas, on January 3, 1951, a subcommittee of the State Democratic Executive Committee of Alabama rendered its finding and judgment that the said four named members and each of them were not duly and legally elected to such membership; and
'Whereas, it has been proved to this Committee that the finding of said subcommittee was arrived at by a majority of one or a vote of three to two, and that there was no evidence to support said findings and that said subcommittee misapplied the law to the facts; that said subcommittee actually counted less than 2500 ballots cast in said primary election for the office of member of said State Democratic Executive Committee of Alabama from the Third Congressional District; that no fraud, corruption or crookedness in said election were proved, to said subcommittee and that there has been no evidence of any such; that the conclusion of said subcommittee and its finding and judgment would result in destroying the sanctity of the ballot and in disfranchising the voters of the Third Congressional District of Alabama; that such conclusion, finding and judgment is not final and binding and should be set aside and held for naught by this Committee.
'Now, therefore, be it resolved by the state democratic executive committee of Alabama in meeting assembled at Montgomery, Alabama on this the 15th day of January, 1951, as follows:
In accordance with the terms of the foregoing resolution, the State Committee rejected Prather, Ray, Hawkins and Samford, and recognized Bridges, Davis, Horn and Hughes as members of the State Committee. From January 15, 1951, the four men last mentioned above have continued to act as members of the State Committee.
The matters above set out appear in a petition or application and the exhibits thereto filed on September 20, 1951, in the circuit court of Jefferson County by Prather, Ray, Hawkins and Samford against Ben F. Ray, individually and as Chairman of the State Committee, the State Democratic Executive Committee of Alabama, and Bridges, Davis, Horn and Hughes.
In addition to the matters heretofore set out, the petition or application as amended avers in substance as follows:
1. That the finding and order of the subcommittee under date of January 3, 1951, is a final adjudication that petitioners were elected in the primary election held on May 2, 1950, and therefore petitioners are members of the State Committee from the Third Congressional District and are entitled to participate in the proceedings of the State Committee and to be recognized as members thereof by the State Committee and its Chairman.
2. That the defendants' sole claim to membership on the State Committee is based on the resolution of the State Committee adopted January 15, 1951.
3. That no rule or regulation of the State Committee authorized that body to review vacate, annul, set aside or disregard the finding and order of the subcommittee and that neither the State Committee nor any other tribunal had any jurisdiction or authority to take such action.
4. That petitioners in no manner consented to the adoption or consideration of the State Committee's resolution of January 15, 1951, nor did they consent in any manner to any hearing or any appeal or review of the finding and order of the subcommittee taken on January 3, 1951; that petitioners did not appear before the State Committee in person or by counsel at the time that Committee adopted the resolution on, to wit, January 15, 1951.
5. That under a resolution adopted January 21, 1950, the State Committee ordered a primary election to be held on May 2, 1950, and provided in said resolution that the membership of the State Committee should be elected in that primary; that the State Committee having so ordered, all of the provisions of Chapter 2, Title 17, Code of Alabama 1940, were and are applicable to and control the election of members of the State Committee, including all the provisions of said Chapter with respect to the institution of contests and the determination thereof.
After praying for process, the petition or application prays in pertinent parts as follows:
(1) '* * * and that Your Honors will grant petitioners a common law writ of certiorari or other appropriate writ directed to the said State Democratic Executive Committee of Alabama, and to the said Ben F. Ray, individually and as Chairman of the State Democratic Executive Committee of Alabama for the removal of said order, or resolution so adopted by said State Democratic Executive Committee of Alabama in meeting assembled at Montgomery, Alabama, on the 15th day of January, 1951 * * * and that Your Honors will vacate, set aside, reverse and annul the said action of the said Democratic Executive Committee of Alabama so undertaken to be made by said resolution or order on January 15, 1951.
(2) 'Your petitioners further pray that upon hearing of this cause this court will order, adjudge and decree:
(a) 'That the State Committee had no jurisdiction to reverse, set aside and hold for naught the finding and order of its subcommittee rendered on the 3rd day of January, 1951.
(b) 'That the State Committee was without jurisdiction and had no authority to order, adjudge and decree, on January 15, 1951, that Bridges, Davis, Horn and Hughes were duly and legally elected in the primary election held on May 2, 1950, to membership on the State Committee from the Third Congressional District.
(c) 'That the finding and order of the subcommittee of the State Committee rendered on January 3, 1951, is a valid, final, binding and conclusive adjudication of the contests.
(d) 'That petitioners, Prather, Ray, Hawkins any Samford are entitled to be seated and participate as members of the State Committee.
(e) 'That the respondents, Bridges, Davis, Horn and Hughes were...
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