State ex rel. Gregg v. Maples, 8 Div. 396

• Court: Supreme Court of Alabama
• Writing for the Court: LAWSON; On the day the said petition for writ of mandamus was presented to him; LIVINGSTON
• Citation: 239 So.2d 198,286 Ala. 274
• Docket Number: 8 Div. 396
• Decision Date: 03 September 1970
• Parties: STATE of Alabama ex rel. Warren Lowe GREGG v. James Herman MAPLES, Clayton Brock and A. C. Sharp, Jr., as Members of the Jury Commission of Madison County, Alabama, et al.

Page 198

239 So.2d 198 286 Ala. 274 STATE of Alabama ex rel. Warren Lowe GREGG
v.
James Herman MAPLES, Clayton Brock and A. C. Sharp, Jr., as Members of the Jury Commission of Madison County, Alabama, et al. 8 Div. 396. Supreme Court of Alabama. Sept. 3, 1970.

[286 Ala. 275] Martinson, Manning & Martinson, Huntsville, for appellant.

Fred B. Simpson, Huntsville, for appellees.

[286 Ala. 276] LAWSON, Justice.

This is an appeal from a judgment of the Circuit Court of Madison County rendered on February 6, 1970, as amended by the trial court, Ex mero motu, on February 12, 1970.

The pertinent provisions of the decree, as amended, read:

'IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED and DECREED by the Court that the writ of mandamus issued by this Court on January 21, 1970, is hereby vacated and held for nought, the peremptory writ of mandamus is denied, and the order of this Court issued on September 23, 1969, is reinstated.'

The 'order' of September 23, 1969, was rendered in response to a motion filed by one Paul Allen Miller on August 21, 1969, in a criminal case, State of Alabama v. Paul Allen Miller, which was pending in the Circuit Court of Madison County. The said motion prayed for an order of the court directing the Jury Commission of Madison County to 'organize a new jury roll and to empty and refill the jury box' on the grounds that the 'present jury rolls do not contain a cross-section of citizens qualified to serve as jurors in Madison County, Alabama,' and that 'no fair and reasonably accurate method is sued by said Commission to determine the qualifications of citizens of this County to serve as jurors,' and that 'all qualified citizens of Madison County do not have an equal opportunity to be chosen for the present roll of this County.'

The District Attorney confessed the averments of said motion and consequently no evidence was adduced in support thereof.

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The 'order' of September 23, 1969, which is alluded to in the amended judgment from

'STATE OF ALABAMA COMPLAINANT

VS PAUL ALLEN MILLER DEFENDANT ORCER

'This cause coming on to be heard upon the motion of the Defendant to call together the jury commission for the purpose of refilling the jury box and for the purpose of reorganizing the jury roll of Madison County and the Court, having heard and considered said motion, is of the opinion that the motion should be and the same is hereby granted, it is, therefore,

'ORDERED, ADJUDGED and DECREED that the following plan for refilling the jury box and reorganizing the jury roll of this county be forthwith adopted and placed into effect and operation by the jury commission of this county, and that the jury box of this county be refilled according to the following plan prior to January 1, 1970;

'JURY REFILLING AND REORGANIZATION PLAN

SECTION 1

Procedures

'(1) Voters List: The names of the registered voters of the county shall be used as the list of names required to be compiled by Section 18, Title 30, as the list of persons to be considered for jury service. From the registration records of the county a card file shall be set up to show the name, date of birth, sex, race, date of registration, and address, if available, of each person registered to vote, and such a file set up by or in the possession of the Board of Registrars shall be used as set out in this plan. The other information required to be obtained [286 Ala. 277] by Title 30 shall be obtained as set out in this plan.' which this appeal is taken, reads in part as follows:

Judge David R. Archer, who rendered the order of September 23, 1969, apparently undertook to amend that order, Ex mero motu, on December 16, 1969. The only changes effectuated in that part of the order of September 23, 1969, which we have set out above, by the so-called amended order of December 16, 1969, was to insert the word 'primary' before the word 'list' where it appears in line 2 of paragraph (1) and by substituting the word 'should' for the word 'shall' where that word appears for the second time in the second sentence of paragraph (1). We call attention to these changes solely for the sake of accuracy. The appellees do not place any importance on the changes, perhaps for the reason that Judge Archer's right to amend the order of September 23, 1969, Ex mero motu, on December 16, 1969, is certainly questionable.

The so-called 'Jury Refilling and Reorganization Plan,' hereinafter referred to as the 'Plan,' contains many provisions in addition to those which we have set out above, but we see no reason to include them in this opinion.

On January 21, 1970, a petition was filed in the Circuit Court of Madison County styled State of Alabama ex rel. Warren Lowe Gregg v. James Herman Maples, Clayton Brock, and A. C. Sharp, Jr., as members of the Jury Commission of Madison County, Alabama, and against A. L. Smith, as Clerk of the Jury Commission of Madison County, which petition prayed in pertinent part as follows:

'* * * that your Honor will grant an alternative writ of mandamus, directed to the Respondents in their official capacities as members of the Jury Commission of Madison County, Alabama and as Clerk of said Commission, commanding them to immediately destroy the presently

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existing rolls of names purporting to be the Jury Roll for Madison County, Alabama; to empty the Madison County jury box of all names which are now therein, and to immediately destroy all of the cards therein; to prepare a new Jury Roll for said County, placing thereon to the extent possible, the names of all citizens of said County between 21 years and 65 years of age who are 'generally reputed to be honest and intelligent and are esteemed in the community for their integrity, good character and sound judgment', and who are not exempted by law from jury duty, and who are not disqualified by law from jury duty; to refill said jury box with all names on said new Jury Roll prepared in compliance with the statutes of this State as the law requires; to disregard in its entirety the aforesaid order, or any subsequent order heretofore entered in said Miller case purporting to control said Jury Commission in the exercise of...