State ex rel. Kernells v. Ezell

• Decision Date: 06 September 1973
• Parties: STATE of Alabama on the relation of Charles KERNELLS v. Mark EZELL, Individually and as Probate Judge of Choctaw County, Alabama, and Juanita Wheeler, Intervenor. SC 462.
• Court: Alabama Supreme Court

Page 266

282 So.2d 266

291 Ala. 440

STATE of Alabama on the relation of Charles KERNELLS v. Mark EZELL, Individually and as Probate Judge of Choctaw County, Alabama, and Juanita Wheeler, Intervenor.

SC 462.

Supreme Court of Alabama.

Sept. 6, 1973.

Irvin J. Langford, and John L. Lawler, Mobile, for appellant.

William L. Utsey, and W. H. Lindsey, III, Butler, for appellee.

BLOODWORTH, Justice.

This is an appeal from an order and judgment of the Circuit Court of Choctaw County, Alabama, granting appellees' motion to dismiss appellant's amended petition for writ of mandamus, which sought to compel appellee as Probate Judge of Choctaw County, to allow appellant, a citizen and taxpayer of that county, to inspect a petition for a local option liquor referendum for Choctaw County.

The single assignment of error charges that the court erred in dismissing appellant's amended petition for writ of mandamus. The basic issue before us on this appeal is whether appellant was entitled to inspect the petition or whether the probate judge was correct in denying such request. This court has concluded that appellant is entitled to such inspection, and that the judge of the court below was in error in granting the appellee's motion to dismiss the appellant's amended petition for writ of mandamus.

It appears from the petition, as amended, that appellant is over the age of twenty-one years, a bona fide resident citizen and a duly qualified elector and voter of Choctaw County, Alabama, as is the appellee, who is the probate judge of that county. The petition further alleges that on June 13, 1973, there was filed in the probate court a petition for a local option liquor referendum for Choctaw County, under an act (Act No. 1266, Acts of the Legislature 1971, Vol. III, p. 2195) which requires that a referendum be held provided 25% Of the registered voters of the county sign a petition, which is then filed with the probate judge. It is further averred that the appellant on the 26th day of June, 1973, did present himself at the office of the appellee probate judge and did present a written request, as chairman of a committee called 'Concerned Citizens for Truth of Choctaw County,' that he be permitted to examine the petition requesting the referendum. Said written request was denied in writing by the probate judge. It is further averred that appellant requested examination of the petition for the referendum in order to determine if it contained the names of sufficient qualified voters and that he made known his purpose to the appellee probate judge. The petition concludes that the act of the probate judge in refusing permission to examine the petition, which is a public record, is improper, erroneous, without just cause and without any legal right on the part of the probate judge to refuse to allow appellant to examine the petition. The petition prays for an alternative writ of mandamus or rule nisi ordering and commanding the probate judge to forthwith allow appellant to inspect the petition. Pursuant to the prayer of the petition, the circuit judge entered an order directing the clerk to issue the alternative writ of mandamus returnable July 10, 1973. After a hearing on July 10, 1973, the circuit judge discharged the alternative writ of mandamus and granted the motion to dismiss the petition for writ of mandamus, taxing the costs against the appellant. This appeal then followed.

It is the appellant's contention that the following code section (Title 41, § 145) gives him the right to inspect the petition in this cause, viz:

'Every citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute.'

There is no statute of which we have been apprised, by brief or our research, expressly providing otherwise; thus, it would clearly appear that this statute will allow the inspection of the petition by appellant.

This conclusion is strengthened by the decision of this court in Scott v. Culpepper, 220 Ala. 393, 125 So. 643 (1930). There, the question was presented as to the right of a citizen of Cullman County to obtain a certified copy of a death certificate entered in the record books of the local register of precinct number one of that county. This court held that the death certificate, a copy of which was demanded, had been filed with the local registrar and was entered in his record book. Since the local registrar was at that time the custodian, and since it could not be doubted that such record did constitute a 'public writing' within the influence of then Section 2695 (now Title 41, Section 145, Code of Alabama of 1940, as recompiled 1958), this 'public writing' was held to be subject to inspection by any citizen and a certified copy due to be given him upon demand and payment of the legal fee therefor. The code section and this case would seem to be ample authority for concluding that in the instant case appellant has the right to examine the instant petition.

Moreover, the following code section appears at Title 13, § 292, Code of Alabama 1940, as recompiled 1958, in a chapter dealing with probate courts, viz:

'The records of the office must be free for the examination of all persons, when not in use by the judge, whether such persons are interested in such records or not.'

It would appear to be the public policy of the State of Alabama, as reflected by this section, that all of the records of the office of the probate judge must be free for examination of all persons, whether interested in the same or not. Whether the petition in the instant case is included within the term 'records,' we need not decide. For, there are other sections of the code dealing with the duties of the probate judge which would seem to indicate the public policy of the state is to give access to 'books' and 'papers' as well as 'records.'

Title 13, § 280 reads, in part, as follows:

'It is the duty of the judge of probate:

'* * *

'3. To keep all the books, papers, and records belonging to his office with care and security; the papers arranged, filed and labeled, so as to be of easy reference; and the books and records lettered, and kept with general, direct and reverse indexes; but, without the authority of the court of county commissioners, he must not make new indexes.

'* * *

'7. On application of any person, and the payment or tender of the lawful fees, to give transcripts of any paper or record required to be kept in his office, properly certified.'

Though we have not found, nor has there been cited to us, a case in Alabama dealing with the question as to whether one should be permitted to inspect a petition for a liquor referendum, this precise question was before the Supreme Court of Montana in State ex rel. Halloran v. McGrath, 104 Mont. 490, 67 P.2d 838 (1937). There, an elector was held entitled to inspect petitions for a liquor referendum while in possession of the county clerk and recorder, regardless as to whether such petitions constituted public records or not, in view of a statute authorizing inspection of public records and other matters in the office of any officer. The Montana Code section with which the court there dealt is identical to our Title 41, Section 145, supra. The Montana Supreme Court issued the pre-emptory writ of mandamus prayed for upholding the...