Tommie v. City of Gadsden

• Citation: 229 Ala. 521,158 So. 763
• Decision Date: 17 January 1935
• Docket Number: 7 Div. 285.
• Court: Supreme Court of Alabama
• Parties: TOMMIE v. CITY OF GADSDEN.

158 So. 763

229 Ala. 521

TOMMIE v. CITY OF GADSDEN.

7 Div. 285.

Supreme Court of Alabama

January 17, 1935

Appeal from Circuit Court, Etowah County; J. H. Disque, Jr., Judge.

Bill for injunction by Effie Boyd Tommie against the City of Gadsden. From a decree sustaining a demurrer to the bill complainant appeals.

Affirmed.

J. C Thomas, of Gadsden, for appellant.

Dortch Allen & Dortch, of Gadsden, for appellee.

GARDNER Justice.

Complainant rests her case upon the alleged insufficiency of the official ballot used in the city election, upon the theory that its form does not meet the requirements of section 222 of the Constitution, and much reliance is had upon Coleman v Town of Eutaw, 157 Ala. 327, 47 So. 703. Our subsequent decisions have recognized the soundness of the Coleman Case, but the language of the opinion in its entirety has not been approved, but in a measure qualified.

In Realty Investment Co. v. Mobile, 181 Ala. 184, 61 So. 248, 249, it was noted that there may be "a substance in form even," and that a substantial compliance with our Constitution in this regard will suffice. The general nature of the election may be presumed to have been known to the voters by the advertisement required by the statute (Salter v. City of Anniston, 220 Ala. 199, 124 So. 663, 665; Dent v. City of Eufaula, 199 Ala. 280, 74 So. 369; Thomason v. Court of County Commissioners, 184 Ala. 28, 63 So. 87), and the purpose of the Constitution should be kept in mind, "to provide security for intelligence of choice and its easy expression."

So viewed, in the instant case, we are persuaded the official ballot substantially meets the requirements of our Constitution. The ballot contains a full description of the bonds to be issued, followed by instructions to the voters to "Make a cross-mark (X) before or after the proposition you wish to vote for." Then follows the proposition, "For proposed bond issue," and "Against proposed bond issue."

The "proposition" referred to is the one set out above fully describing the bonds. It could mean nothing else. So likewise as to the word "Proposed," which could have reference only to the bonds described in the query. It could have no other meaning. The "proposed bond issue" is therefore the bond issue proposed in the query just preceding instructions to the voter. The voter is left in no doubt or uncertainty, and, as said in the Salter Case, supra, and applicable here, "to conclude that the form of the ballot * * * failed to give intelligent direction as to the character of the bond, the subject-matter of the election, is to convict the voter of the utmost carelessness and lack of observation in exercising his choice as an elector."

The...