Vickery v. King, 6 Div. 429

• Decision Date: 17 August 1967
• Docket Number: 6 Div. 429
• Citation: 202 So.2d 148,281 Ala. 303
• Parties: Edgar VICKERY v. J. P. KING, Probate Judge et al.
• Court: Alabama Supreme Court

Page 148

202 So.2d 148

281 Ala. 303

Edgar VICKERY v. J. P. KING, Probate Judge et al.

6 Div. 429.

Supreme Court of Alabama.

Aug. 17, 1967.

Nolen & Enslen, Fayette, for appellant.

T. K. Selman and Hugh Beaird, Jasper, for appellee Wilson.

R. Clifford Fulford, of Levine, Fulford, Gwaltney & Pope, Birmingham, for appellee Vance, as chairman of executive committee.

HARWOOD, Justice.

On 31 January 1966, Leonard R. Wilson filed with Hon. Roy Mayhall, the then Chairman of the State Democratic Executive Committee of Alabama, qualification forms as a candidate for Place No. 1, State Democratic Executive Committee from the Seventh Congressional District as that district existed in November 1960, subject to the Democratic Primary Elections to be held on 3 May and 31 May 1966.

The Seventh Congressional District as of November 1960, consisted of nine counties. Wilson did not file qualification forms naming a 'finance committee' with the Probate Judges of each respective county within the described Congressional District until February 22, 23, or 24, as the case may be.

On 16 April 1966, Edgar Vickery, the appellant here, as a citizen and qualified voter in the Democratic party, filed a bill in Circuit Court of Marion County, one of the counties in the old Seventh Congressional District, seeking to enjoin each Probate Judge in the district from placing Wilson's name on the ballots to be used in the Democratic Primaries above mentioned.

The bill alleged that Wilson had not complied with the requirements of Sections 274 and 275 of Title 17, Code of Alabama 1940, which sections are included in what is commonly known as our Corrupt Practice Act, though as pointed out in Jones v. Phillips, 279 Ala. 354, 185 So.2d 278, many of the rules set forth in this Act involve no corruption whatsoever, but merely establish time limits within which certain acts must be done by a prospective candidate.

Those portions of Section 274, supra, which are material to this review provide that, 'Any candidate shall, within five days after the announcement of his candidacy for any office * * * if it be a district office, or circuit office, file with the judge of probate of each county which is embraced in said district or circuit, the name of not less than one or more than five persons * * *' to receive and expend monies for the purpose of promoting the election of such candidate. Any candidate may declare himself as the person chosen for such purpose.

By the terms of Section 275, supra, a failure to declare the selection of such person or committee to receive and expend campaign monies within the five day period after announcement for any office is declared a corrupt practice, and in event of the failure of the candidate to name such committee 'the name of such candidate so failing shall not be allowed to go upon the ballot at such election.'

On the day the bill was filed (16 April 1966), the court entered a fiat ordering the register to enter a temporary injunction as prayed, conditioned upon complainant furnishing a satisfactory bond in the sum of $500.00.

The complainant furnished the bond and the register issued the temporary injunction on the same day, i.e., 16 April 1966.

On 22 April 1966, Nelson Allen, Probate Judge of Walker County, and one of the respondents, filed his answer stating in substance that the ballots to be used in the primary had been received by him, and delivered by him to the sheriff, as required by law, and that the name of Leonard Wilson appeared on the ballots as a candidate for the office before mentioned; that he (Judge Allen) had no notice of the filing of the bill or of the issuance of the temporary injunction prior to his delivering the ballots to the sheriff, and that he was filing his answer so that the sheriff could be made a party if complainant so desired.

On this day (22 April 1966) the Chancellor, Hon. Bob Moore, Jr., entered an order setting 26 April 1966, as the day on which to hear and determine the mechanics and procedure to be followed in eliminating Wilson's name from the printed ballots in order to comply with the injunction already issued.

On 26 April 1966, the Chancellor entered an order directed to all election officials in the counties comprising the old Ninth Congressional District to the effect that:

'Whereas, under date of April 22, 1966, the Circuit Court of the Twenty-fifth Judicial Circuit Court of Alabama entered an injunction against the Probate Judges of the Counties hereinabove set forth, and since it would work an undue hardship upon the Probate Judges of the various counties to have the ballots reprinted for the Democratic Primary to be held on May 3, 1966: 'You are directed and requested not to count or certify any ballots or votes cast for the following individuals:

"Leonard R. Wilson for Place No. 1, * * *".

On 28 April 1966, Leonard R. Wilson filed an original proceeding in this court averring that he had had no notice of the proceedings had in the Circuit Court of Marion County and had not been made a party thereto; that since the election was to be held on 3 May 1966, some four days off, he was without any practical legal remedy, and if the orders of Judge Moore were permitted to stand he would suffer irreparable injury; that Judge Moore had no jurisdiction of the parties or the subject matter; and that his orders were contrary to law.

Wilson prayed that Judge Moore be prohibited from enforcing the orders issued by him, and for such other and further relief as he might be entitled.

After hearing and argument, this court entered the following order on the day of the hearing:

'In view of the importance of this matter and the impossibility of reviewing Judge Moore's orders prior to the Primary election on Tuesday, May 3, 1966, we feel obligated to exercise the powers conferred on this Court by Section 140 of the Constitution of 1901, which empowers this Court to issue such 'remedial and original writs as may be necessary to give it a general superintendence and control of inferior jurisdictions.'

'We act on the premise that the order of Judge Moore, under date of April 26, 1966, did set aside and vacate the injunction, or restraining order, previously issued under the fiat of Judge Moore under date of April 16, 1966, to the probate judges named in said order; and we proceed to the assumption that the said probate judges are not required to obey said order of April 16, 1966.

'We have serious doubts as to whether Title 17, Sections 274 and 275, as amended, have any application to the petitioners since they are candidates for party office only.

'This order of this Court is not intended to be, and is not, a final determination as to whether any person here involved is or is not qualified for election to any party office in said primary election.

'It is ordered that the Honorable Bob Moore, Jr., as Judge of the Circuit Court of Marion County, be, and he is, hereby required to vacate, annul, and set aside his order made and entered on the 26th day of April, 1966, in that certain cause in said court entitled Edgar Vickery, complainant, v. J. P. King, et al., Case No. 11003, and to notify all election officials in all counties named in said order of April 26, 1966, that they are directed and required to count and certify any and all ballots and votes which may be cast for the following-named persons, to wit:

'Leonard R. Wilson for Place No. 1 * * *'

In compliance with the above order, Judge Moore set aside his order made on 26 April 1966.

On 6 June 1966, the complainant Vickery amended his original complaint by adding Wilson as a party respondent.

Wilson then filed a plea in abatement, and Vickery's demurrer to said plea was sustained.

Wilson then demurred to the complaint as amended, and this demurrer being overruled, he filed his answer.

Robert S. Vance having succeeded Hon. Roy Mayhall as Chairman of the State Democratic Executive Committee, Vance was substituted as a party respondent in lieu of Mayhall.

Wilson received the majority of the votes cast in the first primary held on 3 May 1966.

Upon consideration of the issues as made by the pleadings, and upon evidence taken orally before the court, and stipulations, the court on 5 August 1966, entered a decree denying each prayer of complainant's bill and petition.

The two material issues presented on this appeal are:

1. Was Wilson, as a candidate for a party office subject to the provisions of our Corrupt Practice Act, and

2. Not having filed with the respective Probate Judges in his district within five days the name or names of the committee to receive and disburse campaign funds as required by Section 274, supra, was his election therefore invalid?

As to issue No. 1, it is strenuously argued by counsel for appellee that Section 274 does not apply to candidates for party office in that said section was amended in 1959 with no mention made of candidates for party office appearing in the amendment, ergo, the legislature intended to remove candidates for party offices from the provisions of Section 274.

As pointed out in Jones v. Phillips, 279 Ala. 354, 185 So.2d 378, prior to the 1959 amendment of Section 274, there had been some doubt as to whether said section required candidates for the legislature to file the names of the person or persons to receive and expend campaign funds. The amendment was to remove any doubt. It did not repeal, either actually or by implication, any of the other provisions of the Corrupt Practice Act.

Section 269 of Title 17, a part of the Corrupt Practice Act, is as follows:

'Candidate defined.--The word candidate in this article means any person who has announced to the public that he is a candidate for election or nomination to Any public or Party office.' (Italics ours.)

In view of the above section, still in full force and effect despite the contentions of appellee's counsel, we think it unarguable that candidates for party office are subject to the provisions of ...