Turner v. Cooper
| Decision Date | 03 June 1977 |
| Citation | 347 So.2d 1339 |
| Parties | Alford TURNER et al. v. A. J. COOPER, Jr., et al. SC 2162. |
| Court | Alabama Supreme Court |
John M. Tyson and Joseph J. Boswell, Mobile, for appellants.
Charles S. Street and Donald M. Briskman, Mobile, for appellees.
This is an appeal from an order of the Circuit Court of Mobile County granting a motion to dismiss the action of election contestants. We affirm.
The City of Prichard held an election on August 10, 1976 to fill, among others, the offices of mayor and five councilmen. All of the plaintiffs, with the exception of Yancina Stallworth Douglas, were candidates for office in that election. Under Tit. 37, § 34(68), Alabama Code (Recomp. 1958), they initiated a contest of the elections of the defendants who had been declared elected to those offices, alleging numerous separate grounds of contest.
We will not attempt to set out all of the pleadings, which were many, but only so much as appears to be necessary to focus upon the principal issues before us.
Motions to strike portions of the complaint were granted by the trial court, after which plaintiffs filed an amended complaint, striking one party-plaintiff and adding additional grounds of contest. Again, motions to strike were granted, leaving the following grounds of contest:
7. The election of A. J. Cooper, Jr., Freddie Harris, John L. Myrick, John Langham, John Sanderson, and Shafter Summers, separately and severally, are each contested upon the following grounds:
E. That illegal votes were cast for the following named candidates by persons who were not qualified voters in that they were not bonafide resident citizens of the City of Prichard, Alabama, within the time prescribed by law prior to the date of said election, to-wit:
(1) A. J. Cooper, Jr.
(2) Freddie Harris
(3) John L. Myrick
(4) John Langham
(5) John Sanderson
(6) Shafter Summers
F. That illegal votes were cast for the following named candidates by voters who were or may have been bonafide resident citizens of the City of Prichard, Alabama, but were not duly qualified electors in that they were not properly registered as voters in accordance with the laws of the State of Alabama, to-wit:
(1) A. J. Cooper, Jr.
(2) Freddie Harris
(3) John L. Myrick
(4) John Langham
(5) John Sanderson
(6) Shafter Summers
G. That legal votes for contestant candidates and other candidates were rejected and illegal votes were given to the following named candidates for the offices set opposite their respective name which, if taken from him and legal votes added to other candidates, would reduce the number of legal votes given to the defendant candidates, separately and severally, below the number of legal votes necessary and required to have the defendant candidates declared winners of the races set opposite their names, to-wit:
(1) A. J. Cooper, Jr., Mayor
(2) Freddie Harris, Councilman, Place One
(3) John L. Myrick, Councilman, Place Two
(4) John Langham, Councilman, Place Three
(5) John Sanderson, Councilman, Place Five
(6) Shafter Summers, Councilman, Place Four
(1) They allowed persons who were not qualified voters to cast illegal votes;
(2) They allowed persons who were duly challenged by a qualified elector to vote on the voting machines in violation of Title 37, Section 34(39) of the Code of Alabama;
(4) They fraudulently and willfully disposed of challenged ballots;
(8) They fraudulently and negligently allowed qualified and unqualified voters to vote more than one time in said election;
(9) They refused to accept or allow voters who were duly qualified to vote in violation of the laws of the State of Alabama (22) They unlawfully failed or refused to record the legal votes cast for the contestant candidates herein and other candidates;
(23) They unlawfully recorded illegal votes for the defendant candidates herein;
The defendant Cooper moved to prevent the City of Prichard from opening the ballot boxes and voting machines which had been used in the election, and the trial court granted a temporary restraining order accordingly. A petition for a writ of mandamus was then filed in this Court seeking to compel the vacation of that order, and the proceeding in the trial court was continued pending our action on that petition. After this Court denied that petition, the trial court, which had custody of the machines, granted the motion to intervene of the Judge of Probate of Mobile County. That official sought the release of fifty of the voting machines which had been used in the contesting election. After making certain findings, which we quote below, the trial court granted this motion:
The court finds that the voting machines used in said election are so constructed that the only information which may be obtained from the machines are the total votes cast on the machines, the total votes cast on the machines subsequent to resetting its counters to zero, and the votes cast for each candidate or propositions voted on since the last time the counter was reset to zero, and the names of any write-in votes cast subsequent to clearing the write-in register; that all of the above information may be retained by the court without physical retention of the voting machines by means of physically reproducing the printouts and inspecting the write-in register and recording the reading of the total vote counter, and proper operation of the machine at this time can be determined by voting on said machine one vote for each candidate; that upon obtaining this information from each of the 50 voting machines used in said election, there will be no further need for this court to retain custody of said voting machines.
The court further finds that the said voting machines were physically transported from the polling places where used in said election to the voting machine warehouse of Mobile County, Alabama, on August 11, 1976; that they were received there sealed with no evidence of their having been tampered with in any manner, and that said machines have been physically stored in the city voting machine warehouse since that date; that the boxes and any other equipment, supplies or paraphernalia have remained in actual possession of the City Clerk of the City of Prichard, Alabama. The court being of the opinion that all of the aforesaid items should be impounded by the court and preserved pending this election contest, and the court being of the opinion that substantial justice will be done and no inconvenience will be caused the parties by the release of the voting machines to the Probate Judge of Mobile County, Alabama, after preserving the information contained therein as hereinabove set forth.
It is ORDERED, ADJUDGED AND DECREED, that John E. Mandeville as Clerk of the Circuit Court of Mobile County, Alabama, forthwith take into his possession and control all of the voting machines, boxes, equipment, supplies, and paraphernalia used by the City of Prichard in conducting said municipal election in the City of Prichard, Alabama, on August 10, 1976, and all City officers, clerks, employees, agents, and servants, and any other persons having possession or control of any of these items turn over and release to the said John E. Mandeville, all such items in their possession or under their control.
It is further ORDERED, ADJUDGED AND DECREED that John E. Mandeville, upon receipt by him of sufficient supplies to do so furnished by the Probate Judge of Mobile County, Alabama, shall proceed to record all information presently shown on each of the said voting machines, including the voting machine number and the number on the seal locking said machine against voting, that he shall then cast one additional vote for each of the candidates in said election and shall again record the counter readings, and shall reseal each such machine against further voting thereon; that the said John E. Mandeville shall then seal the information so obtained, and shall store the same with the other items herein impounded, and shall secure all such items pending further order of this court.
Meanwhile, on September 23, 1976 the defendant Cooper moved to have a hearing date set on the election contest, and on the same date moved for an order that the plaintiffs furnish to the defendants:
. . . in writing, the number of illegal votes and by whom given and for whom given, and at what precinct or voting place cast, or the number of legal votes rejected, and by whom offered, and at what precinct or voting place cast, which he expects to prove on the trial.
Much of the language of this motion is taken from Tit. 17, § 237, Alabama Code (Recomp.1958).
On September 24, 1976 the trial court set November 1, 1976 as the hearing date and ordered the plaintiffs to furnish the requested information "on or before October 15, 1976," (within twenty-one days).
Later, on October 8, 1976, plaintiffs moved for a preliminary hearing date in order to allow them to "present evidence in support of the allegations made in their complaint," and attached affidavits in support of this motion. On that date plaintiffs also filed a motion to require the opening of the voting machines and election supply records on the ground "that it is necessary in the presentation and prosecution of their case. . . ." Both of these motions were denied.
The defendants then moved to dismiss the action on the ground that the plaintiffs had failed to comply with the trial court's order requiring plaintiffs to furnish the witness list in accord with the provisions of Tit. 17, § 237. After argument in open court, this motion was granted with prejudice on October 29, 1976.
The plaintiffs have ascribed several errors to the trial court on this appeal, all of which depend upon the propriety of his ruling granting the defendant's motion to dismiss. If it was necessary in this election contest to furnish such a witness list as defendants requested and as the court ordered, the failure to provide it, in the...
To continue reading
Request your trial
-
Ex parte Baxley
...cases clearly hold, that § 17-16-79 is to be strictly construed and applied. Carter v. Wiley, 406 So.2d 340 (Ala.1981); Turner v. Cooper, 347 So.2d 1339 (Ala.1977). I believe that there is a logical relationship between the sufficiency of the evidence necessary to prove an election contest ......
-
Roper v. Rhodes
...and specifically enumerated" statutory basis for the relief requested, see Ex parte Baxley, 496 So.2d 688 (Ala. 1986), and Turner v. Cooper, 347 So.2d 1339 (Ala. 1977), or because they involved a failure to exhaust administrative remedies, see Dunning v. Reynolds, 570 So.2d 668 (Ala. 15. I ......
-
Etheridge v. State ex rel. Olson
...far as authority to do so shall be specially and specifically enumerated and set down by statute ...' "This Court, in Turner v. Cooper, 347 So.2d 1339, 1346 (Ala.1977), said that `[c]ontests of elections are statutory creations, except insofar as we have noted, and the statutory requirement......
-
Godfrey v. Oswalt
...are to be strictly construed." Longshore v. City of Homewood, 277 Ala. 444, 446, 171 So.2d 453, 455 (1965). See also, Turner v. Cooper, 347 So.2d 1339 (Ala.1977). Section 17-16-73 clearly covers the "institution" of a contest at the county committee level. It arguably could be applied to a ......