Opinion
6 Div. 94.
October 29, 1942. Rehearing Denied October 31, 1942.
Appeal from Circuit Court, Cullman County; Seybourn H. Lynne, Judge.
Petition of Herman E. House and others for mandamus to compel H. H. Kinney, as Judge of the Probate Court of Cullman County, to print the names of petitioners on ballots to be used in the general election. From a judgment granting the writ, respondent appeals.
Reversed and rendered.
The petition alleges that on August 11, 1942, the second Tuesday in said month, a mass meeting of the Republican party convened and was held at the court house in Cullman County for the purpose, among others, of nominating candidates of said party for certain county offices in the general election to be held November 3rd. At said meeting it was duly determined and resolved that nomination of the party's candidates for public offices in said county to be voted on at said general election be made by a nominating committee, which committee was then and there duly elected and appointed and given full power to nominate the candidates of the party. Thereafter, September 12th, said committee met and nominated the petitioners as candidates for the offices in question. On October 3rd the chairman and secretary of said mass meeting filed in the office of the respondent the following certificate, sworn to and subscribed before a notary public, viz:
"To Hon. H. H. Kinney,
"Judge of Probate of
"Cullman County, Ala.
"We, the undersigned duly elected chairman and secretary of a mass meeting of the Republican Party of Cullman County, Alabama, duly called according to law, and convened on the 11th day of August, 1942, at the court house in Cullman, Alabama, hereby certify that a Republican County Mass. Meeting convened at the court house in Cullman, Alabama, on August 11, 1942, for the purpose of nominating candidates to be voted on in the general election to be held November 3, 1942, for Cullman County, Alabama. We further certify that said Mass. Meeting, through its duly elected committee, nominated the following candidates for the following offices, to-wit:
"For Sheriff: Herman E. House
"For Tax Assessor: Ottis C. Hall
"For Tax Collector: Howell J. Batemon
"For Member of School Board: W. E. Pattillo.
"Henry F. Arnold ---------------- "Chairman
"T. M. Bailey ---------------- "Secretary."
Respondent, on October 10th, advised petitioners that it would be necessary that he determine whether or not said mass meeting was held in compliance with the law, and to that end a hearing would be held on October 12th. Petitioners attended said hearing, protested that respondent had no authority to hold the same and demanded that their names be printed upon the ballots. After said hearing respondent declared petitioners' nominations to be invalid and declined to print their names upon the ballots.
Respondent's answer to the petition sets up that a mass meeting of the Republican party was held on August 11th, but that said meeting adjourned without nominating any of the petitioners as candidates for the offices in question, but nominations were made at a mass meeting held on September 12th, at a time not authorized by law, and that the action of said meeting in nominating candidates was null and void.
The evidence tends to show that at said mass meeting held on August 11th the matter of making nomination of the party's candidates was brought up and a motion was duly made and carried that the beat committeemen in each beat of the county be made a nominating committee, with full power to nominate the candidates of the party for the general election, and that that committee meet back at the court house on September 12th to announce or to make the party's nominations. It was resolved that the mass meeting recess or adjourn to meet back again at the court house on September 12th. On said September 12th the nominating committee and the mass meeting met pursuant to said motion and said resolution, and petitioners were nominated for the offices shown by the certificate by said nominating committee.
St. John St. John, of Cullman, and Mullins Deramus, of Birmingham, for appellant.
Mandamus will not lie unless a clear, specific legal right is shown. Ex parte Smith, 228 Ala. 232, 153 So. 152; Brody v. Armstrong, 205 Ala. 263, 87 So. 798; Cloe v. State, 209 Ala. 544, 96 So. 704. Statutes providing for the time and manner of making nominations go to the substance of an election. Code 1940, Tit. 17, §§ 413, 414, 416; Rainwater v. State ex rel. Strickland, 237 Ala. 482, 187 So. 484, 121 A.L.R. 981; Simpson v. Teftler, 176 Ark. 1093, 5 S.W.2d 350; Johnson v. Holm, 198 Minn. 192, 269 N.W. 405. Nominations of appellees being void, as having been made in a way and manner not authorized, or at a time not permitted under the law, they have no right to require any action on the part of the appellant as probate judge. Dunn v. Dean, 196 Ala. 486, 71 So. 709; Couch v. Hill, Tex.Civ.App., 10 S.W.2d 170; State v. Wells, 87 W. Va. 275, 104 S.E. 591; Asher v. Arnett, 280 Ky. 347, 132 S.W.2d 772; State v. Metcalf, 18 S.D. 393, 100 N.W. 923, 67 L.R.A. 331; State ex rel. Shepard v. Superior Court of King County, 60 Wn. 370, 111 P. 233, 140 Am.St.Rep. 925; Smith v. McQueen, 232 Ala. 90, 166 So. 788; Garrett v. Cunninghame, 211 Ala. 430, 100 So. 845. Appellees have no right to rely upon illegal nominations for relief. Hinkle v. Railway Express Agency, 242 Ala. 374, 6 So.2d 417; Walker v. Graham, 228 Ala. 574, 154 So. 806; Garrison v. Sumners, 223 Ala. 17, 134 So. 675; Long v. Holley, 177 Ala. 508, 58 So. 254; 1 C.J.S. Actions, p. 996.
Julian Harris and Norman W. Harris, both of Decatur, for appellees.
The duty of the probate judge in causing ballots to be printed is a duty which is purely ministerial. Code 1940, Tit. 17, § 145; 20 C.J. 141, 146, §§ 164, 171; Garrett v. Cunninghame, 211 Ala. 430, 100 So. 845; State v. Falley, 8 N.D. 90, 76 N.W. 996; Fuller v. Corey, 18 Idaho 558, 110 P. 1035; County Board of Election Com'rs v. State, 148 Ind. 675, 48 N.E. 226; Wells v. Munroe, 86 Md. 443, 38 A. 987; In re Madden, 148 N.Y. 136, 42 N.E. 534; State ex rel. McAulay v. Reeves, 196 Wn. 1, 81 P.2d 860; State v. Goff, 129 Wis. 668, 109 N.W. 628, 9 L.R.A., N.S., 916. Where certificate of nomination, regular on its face and executed by proper parties, is filed as provided by law, it is conclusive on official charged with duty of printing ballots, and he has no jurisdiction or authority to inquire into regularity or validity of nomination so certified. Authorities, supra. The right of a political party to make nomination by party action in mass meeting of members of party is recognized by the Constitution and the Code, the statute providing for meetings on the second Tuesday in August in even numbered years which are not presidential election years. Constitution, §§ 183, 190; Code 1940, Tit. 17, §§ 145, 413-416. Statutes relating to elections should be liberally construed to give voters as great freedom of choice as possible and prevent disfranchisement of legal voters. 18 Am.Jur., Elections, § 11; Bowers v. Smith, 111 Mo. 451, 20 S.W. 101, 16 L.R.A. 754, 33 Am.St.Rep. 491; White v. Sanderson, 74 Minn. 118, 76 N.W. 1021, 42 L.R.A. 231, 73 Am.St.Rep. 334; Mitchell v. Kinney, 242 Ala. 196, 5 So.2d 788; Simpson v. Osborn, 52 Kan. 328, 34 P. 747; Stackpole v. Hallahan, 16 Mont. 40, 40 P. 80, 28 L.R.A. 502. A mass meeting or convention of a political party has power to delegate to a committee the matter of making the nomination of candidates of the party. 20 C.J. 108, § 99; 18 Am.Jur., Elections, § 142; White v. Sanderson, supra; Rice v. Waterman, R.I., 84 A. 795; In re Callahan, 200 N.Y. 59, 93 N.E. 262, 140 Am.St.Rep. 626; Potter v. Deuel, 149 Mich. 393, 112 N.W. 1071; Stackpole v. Hallahan, supra. A deliberative body has power to adjourn from time to time, and an adjourned meeting is deemed to be a continuation of a regular meeting, and its actions at adjourned meeting are to be given the same effect as if done at a regular meeting. 46 C.J. 1378; 1 C.J. 1234; State v. Fagan, 42 Conn. 32; Stockton v. Powell, 29 Fla. 1, 10 So. 688, 15 L.R.A. 42; Board of Revenue v. Merrill, 193 Ala. 521, 68 So. 971. If the statute is construed as requiring all action with reference to nominations of candidates to be concluded on second Tuesday in August and as prohibiting action by mass meeting on any subsequent day, the statute is rendered unconstitutional. Constitution, §§ 1, 25, 33, 35; 18 Am.Jur., Elections, §§ 6, 133; State v. Junkin, 85 Neb. 1, 122 N.W. 473, 23 L.R.A., N.S., 839.
Petitioners seek mandamus to have the Probate Judge of Cullman County place their names upon the printed ballot for the election of November 3rd next as candidates of the Republican Party for the several offices for which they claim to have been nominated. It is first insisted that the Judge of Probate in so having the ballots printed acts in a ministerial capacity and is without authority to question the right of the petitioners in that respect. In Section 145 of Title 17, Code 1940, the Judge of Probate is to print the names of the candidates on the ballots but there is no provision that a certificate of nomination shall be conclusive. The certificate in the instant case is equivocal to such an extent as to put the Probate Judge upon inquiry that the nominations were not in accord with the statute. The Probate Judge need not proceed blindly in printing the ballots and if it plainly appears to him, even as a ministerial officer, that the nominations were contrary to the mandatory provisions of the statute, we think he had the right to decline to print the names on the ballot and leave the matter for the courts. The case of Walling v. Lansdon, 15 Idaho 282, 97 P. 396, is here much in point. The substance of the holding in this respect is found stated in the note to 29 C.J.S., Elections, 88, p. 121, as follows: "Where matters pertaining to nominations are regulated by statute, questions of compliance with the statute and infringement of the legal rights conferred are judicial; and the courts are not ousted of jurisdiction or bound by the decisions of party authorities with regard thereto." And as said in 29 C.J.S., Elections, § 162, p. 239: "Mandamus will not issue to compel the placing on the ballot of names of persons not entitled to have their names on the ballot." The certificate of nomination presented to the Probate Judge, as we have indicated, is ambiguous and indicates that the nominations were made by committees with the significant omission entirely of the time when the nomination was made. With the statute hereinafter referred to before him, the Probate Judge, even acting in a ministerial capacity, had the right to make further inquiry to ascertain if the statute had been complied with.
Upon the merits, we are persuaded petitioners have not shown a clear legal right (Smith v. McQueen, 232 Ala. 90, 166 So. 788) to have their names as candidates printed upon the ballots. This upon the theory that they were not nominated at a mass meeting as prescribed by law. In Section 413, Title 17, Code 1940, is the express provision for the time of holding a mass meeting for such purposes. The time is fixed by succeeding sections and this particular section states expressly such meetings shall be held "at no other [time]." To make this provision still more emphatic, it is provided in Section 416 that any person who shall hold, attend or participate in the holding of any mass meeting at any other time for the purpose of nominating a candidate or candidates for public office shall be guilty of a misdemeanor. It is clear enough, therefore, that the statute fixing the time of holding any such mass meeting is mandatory and this is the view of authorities generally. 18 Am.Jur. 250; 29 C.J.S., Elections, § 77, p. 102; 29 C.J. 101; note to Patton v. Watkins, 90 Am.St.Rep. 49. The mass meeting in the instant case was first held at the appointed time, but no nominations were made and indeed no names were placed in nomination, "but adjournment taken for thirty days, with appointment of committee to make nominations thereafter." Of course, it is clear that had the mass meeting continued in session from day to day a reasonable time for nominations, there would have been a continuous meeting and the requirements of the statute would have been met. But such was not the case. The meeting adjourned for a period of thirty days and when the last meeting was had, it was a separate and distinct mass meeting (if it could be so called) which could have consisted of entirely different personnel. But whether so or not is unimportant. The matter of prime importance is that it was a different mass meeting held at an unauthorized time. Such procedure would not meet the provisions of the statute. To sanction it would open the door to a plain and willful violation of the mandatory provisions of the law. No such second mass meeting was authorized by our statute. Greenough v. Whiteley, 27 R.I. 355, 62 A. 213. Petitioners, therefore, were not nominated at a mass meeting as provided by law and, of consequence, were not entitled to have their names printed upon the ballots as such candidates. It results that the judgment of the court below is due to be reversed and one is here entered denying relief and dismissing the petition.
Reversed and rendered.
All the Justices concur.