State ex rel. Smith v. Deason

• Decision Date: 12 January 1956
• Docket Number: 6 Div. 905
• Citation: 88 So.2d 674,264 Ala. 596
• Parties: STATE ex rel. Arthur SMITH v. J. H. DEASON.
• Court: Alabama Supreme Court

Page 674

88 So.2d 674

264 Ala. 596

STATE ex rel. Arthur SMITH v. J. H. DEASON.

6 Div. 905.

Supreme Court of Alabama.

Jan. 12, 1956.

Rehearing Granted June 30, 1956.

Selman & Beaird, Jasper, for appellant.

Fite & Wilson, Tweedy & Beech and Hoyt Elliott, Jasper, for appellee.

PER CURIAM.

The opinion of the Court heretofore announced is withdrawn and the following opinion is substituted in lieu thereof.

This is an appeal from the judgment by the Circuit Court of Walker County, Alabama, in a quo warranto proceeding brought by the appellant Smith. The proceeding involves the right of the contending parties to membership on the Board of Revenue of Walker County for District No. 1. At the time of trial, the office was held by J. H. Deason and claimed by Arthur Smith.

The office was formerly occupied by the late E. W. Swindle, who was elected at the General Election of November, 1952, for a term of four years beginning in January, 1953. Mr. Swindle died August 22, 1954. The appellee-respondent was issued a commission to this office by the Governor on September 17, 1954.

The Act creating the Board of Revenue for Walker County provides:

'Section Six. * * *; that should there be or become a vacancy in the membership of said Board of Revenue * * * the Governor shall fill such vacancy by appointment who shall serve until the first Monday after the second Tuesday in January following next general election after such appointment. * * *' Local Acts of Alabama 1935, page 131.

The office of member of the Board of Revenue for District No. 1 did not appear on the official ballot in Walker County for the general election in November, 1954. However, seventy-six of the persons voting in such election wrote in both the title of the office and the name of Arthur Smith, the relator, at the bottom of the official ballots cast by them. It is by virtue of these seventy-six write-in votes that the relator claims the office of member of the Board of Revenue. There is no evidence that any attempt was made by any other person in that election to secure write-in votes. After certification of the returns, Smith executed the prescribed oath of office and posted the necessary bond, but was prevented from occupying the office by the refusal of the respondent Deason to vacate.

While it does not appear that any certification of vacancy was made to the Governor, a second commission was issued to the respondent Deason on January 17, 1955. The evidence as to the existence of vacancy and the circumstances surrounding the issuance of the second commission leave much to be desired.

After this quo warranto proceeding was filed, it was placed on the docket of the Hon. Arthur Fite, Jr., one of the Judges of the Circuit Court of Walker County. The relator Smith, through his attorneys, filed a motion to require Judge Fite to recuse himself from ruling on any of the pleadings and from the trial of this cause. The basis of the motion to recuse was as follows:

First, that prior to Judge Arthur Fite, Jr.'s appointment to the office of Circuit Judge he was a member of a law firm which represented the Board of Revenue, and that Judge Fite as a member of such law firm represented the Board of Revenue during the time when appellee was a member of such board serving under his first commission.

Second, that the respondent is represented in the present trial by the Hon. Arthur Fite, Sr., the father and former partner of Judge Arthur Fite, Jr. The motion further states that Mr. Fite, Sr., is now, and has been for several years prior thereto, retained as counsel for the Board of Revenue.

A hearing was had on the motion seeking to require Judge Fite to recuse himself, which motion was overruled. The truth of the matters alleged in the relator's motion was established by testimony at the hearing.

Demurrers were sustained to all counts of the relator's complaint. The complaint was amended and demurrers thereto were again sustained to all counts except Count No. C on which ground the cause was tried. The trial was had before a jury. After the presentation of the relator's case, the respondent rested and offered no additional evidence. We will treat later the respondent's failure to carry forward the proof.

The court first gave the jury respondent's requested charge No. 1, which was the general affirmative charge with hypothesis. After the jury had retired and begun their deliberations, the court recalled the jury, withdrew its prior instruction, and gave the respondent's second requested charge, which was the general affirmative charge without hypothesis. Without retiring, the jury reached a verdict for the respondent on which judgment was rendered.

We must first consider the rulings of the court on the relator's motion for the trial judge to recuse himself. The first ground of that motion relates to Judge Fite's connection with the firm of Fite and Fite, which firm was retained by the Board of Revenue at the time of the respondent's original appointment to the board. It does not appear from the record nor is it contended that Judge Fite, during such time, rendered any legal service in connection with the respondent's appointment or his subsequent occupancy of the office of member of the Board of Revenue. Nor does it appear that because of his former representation of the Board of Revenue that Judge Fite had any interest in the subject matter of this quo warranto proceeding. We, therefore, hold that the mere fact that Judge Fite did, at a prior time, represent the Board of Revenue is insufficient, in and of itself, to require him to recuse himself in the trial of this cause. State ex rel. Austin v. City of Mobile, 248 Ala. 467, 28 So.2d 177.

The second ground of the motion is directed to the fact that Circuit Judge Fite is the son of one of the counsel for the respondent, and that the father is, and has been for several years prior hereto, retained by the Board of Revenue of Walker County as legal counsel. The Code of Alabama 1940, Title 13, Section 6, provides in part that 'No judge of any court, * * * must sit in any cause or proceeding in which he is interested, or related to either party within the fourth degree of consanguinity or affinity, * * *.' The determinative question here presented is whether Mr. Arthur Fite, Sr., the father of the trial judge, is a 'party' within the meaning of the above cited Code section. The relator relies on the case of Gulf States Steel Co. v. Christison, 228 Ala. 622, 154 So. 565. As we view that case, however, it furnishes authority only for the proposition that an attorney is a 'party' when he is directly interested in the subject matter of the suit, as for example, where he is employed on a contingent fee payable out of the judgment recovered. It is self-evident that all attorneys are 'interested' in the outcome of their client's case. There is, however, a most important distinction between an 'interest in the outcome of the case' and interest in the subject matter of the suit which would bring an attorney within the purview of Title 13, Section 6, above. If we are to find an interest in the subject matter of the suit by Mr. Fite, Sr., it must necessarily result from his employment by the Board of Revenue; and we must further assume, and find as a fact, that the outcome of the present proceeding would have a direct bearing on his continued employment by the Board. The authorities cited by the appellant do not support the conclusion that Mr. Fite, Sr., was a 'party' to the case in the present circumstances. It is our opinion that the possible effect on future employment of this attorney is too remote an interest in the outcome of the litigation to establish Mr. Fite, Sr., as a 'party' within the statutory prohibition. We, therefore, conclude that the court below did not err in its ruling on appellant's motion to require the trial judge to recuse himself.

The basic question here involved is the right of the contending claimants to the disputed office. At common law, the judgment in a quo warranto proceeding determined only the right of the respondent to the office. If the respondent admits holding the office and exercising its functions, the burden was upon him to show his right and title to the office.

However, by statute in Alabama, Code of Alabama 1940, Title 7, Section 1145, the judgment in a quo warranto proceeding may settle the rights of each of the contending parties. The appellant's right rests on his claim that he was duly elected to the office by the General Election of November, 1954. This contention is determined by deciding whether or not there was any legal election for the position of Board of Revenue of Walker County, District No. 1, at the time of the general election.

There was no space provided on the ballot for this office; and except for the seventy-six write-in votes for the relator, there was no competent evidence to show that an election for that office was held in November, 1954. Section 153, Title 17, Code expressly directs that at each election every ballot shall contain the title of the office being voted for. This statutory provision must be strictly adhered to and a failure to substantially comply with the statutes invalidates the ballot. Walker v. Junior, 247 Ala. 342, 24 So.2d 431, 165 A.L.R. 1257.

Provision is made by sections 162 and 193, Title 17, Code, for writing in the name of some person and voting for him when his name is not printed on the ballot. Garrett v. State ex rel. Cuninghame, 211 Ala. 430, 100 So. 845. In Reed v. State ex rel. Davis, 234 Ala. 306, 174 So. 498, where the printed ballot named the office and provided that the voter may 'vote for one,' when two were to be elected, it was held not invalid to vote for two as authorized by law.

But there is no provision of law which justifies the addition to the printed ballot of the name of an office to be filled not appearing on the official ballot. It is not necessary to speculate on the reason for such status...