Opinion
4 Div. 617.
August 7, 1950.
It appears that Ben May and others instituted contests of election of Jack M. Bridges and others as members of the State Democratic Executive Committee, and that a sub-committee appointed by the State Committee proceeded to a hearing of the contests. Pending the hearing the contestees applied to the respondent Bowen W. Simmons, Acting Circuit Judge, for a writ of prohibition to prevent the sub-committee from proceeding with the hearing, assigning as grounds (a) that the statements of contest are insufficient in form and substance; (b) that the sub-committee as appointed by the Chairman of the State Committee is so constituted that it would be impossible for petitioners to obtain a full, fair and impartial hearing before such tribunal; and (c) — as alleged in paragraph 14 of the petition — want of jurisdiction in the Chairman of the State Committee to appoint such sub-committee, and of such sub-committee to hear the contests, for that statements of contest were not filed by contestants with the Chairman of the State Committee and the required sum to cover the costs and expenses of said contests was not deposited with said Chairman within fifteen days after the results of said primary election had been declared, as required by law.
Respondent Circuit Judge issued a rule nisi to said sub-committee, whereupon contestants applied to the Supreme Court for a writ of prohibition restraining respondent judge from further proceeding in the matter. The Supreme Court denied the writ, holding that "the averments of Paragraph 14 of the petition presented to the circuit court were sufficient to invoke its jurisdiction to issue the rule nisi," and that "all the other grounds of the petition presented to the Acting Judge of the Circuit Court of Coffee County were insufficient to invoke its jurisdiction in the premises." Ex parte May, 253 Ala. 684, 46 So.2d 836.
Thereafter, on the date to which said rule nisi had been made returnable, the respondent judge proceeded to a hearing. Contestees, in reply to the sub-committee's answer to the rule, asserted that they were not ready for said hearing; that the opinion of the Supreme Court, supra, was not binding upon the respondent judge or the contestees in the proceeding; that the statements in said opinion to the effect that only the averments of paragraph 14 of said petition were sufficient to invoke jurisdiction of the circuit court to issue the rule nisi were dicta; and that contestees, as petitioners, had the right to have other grounds set up in the petition heard and determined. They requested sufficient time in which to determine the proper methods for presenting such other grounds to the respondent judge. Over objection of the Chairman of the State Committee and of the sub-committee, respondent granted the request for a postponement, stating in open court the following, in substance:
"The court at the present time, and without committing itself, feels constrained to follow what the Supreme Court of Alabama has said in this opinion on that petition for a writ of prohibition as to this court. However, this court does feel that that part of the opinion which deals with other allegations of the petition than the question of filing the petition and the security of costs is purely dicta. But this court will feel constrained on a proper hearing, and when the issues are properly presented by the parties litigant in this cause, to follow what the Supreme Court has said. However, in following what the Supreme Court has said, this court at the present time does not feel that it is incumbent upon it, because of this expression of the Supreme Court of Alabama, to cut off and deny the complainants, the petitioners in this cause, their right to get that issue properly presented to the Supreme Court in a litigated case. Now as to how those issues may arise is another question. The court anticipates that in all probability it may be by offering evidence to sustain those other allegations, and the court anticipates that they might meet objection if it is offered, and then the court would reserve the right at that time to rule on whether or not the testimony was objectionable in the light of what the Supreme Court has suggested or said. However, I don't think it was ever the intention of the Supreme Court of Alabama in writing that opinion, to conclude the parties litigant, petitioners in this cause, from having the issues presented to them in a litigated case, and so far as appears now, respondents in this cause have taken a route which, in all probability would lead to a preclusion of their being presented to the Supreme Court of Alabama. This court does not feel disposed to sustain that preclusion, and to prevent those issues from being presented, so, therefore, in order to get this case in proper shape, to give these parties litigant, petitioners in this cause, proper time to get their pleadings ready so as to raise those issues, and perchance, if they want to go, so that they can have (sic) to take it to the Supreme Court, and even to the Supreme Court of the United States, and for this court to sit down here and deny them that right by following merely dicta of the Supreme Court which the court is going to recognize at the proper time according to its present idea, would be rank injustice.
"So, therefore, in view of what I have said, and my reasoning in it, I am going to continue this hearing and take these motions under advisement and defer decision until a future day."
The petition asserts that respondent judge had no jurisdiction or authority of law to consider any of the other grounds averred in contestee's petition as a basis for the relief prayed than those allegations contained in paragraph 14 of said petition; that the entering into any of the other matters and grounds alleged in said petition, save those contained in said paragraph 14, would cause great confusion and unnecessary delay in the hearing and determination of the proceedings before respondent; that the action already taken by the respondent judge and his proposed action with reference to said petition for writ of prohibition and the rule nisi issued by him are unauthorized by law and are arbitrary and capricious or else made by reason of a mistaken view of the law or otherwise, whereby there has been in fact no actual and bona fide exercise of judgment and discretion on the part of said respondent judge; that the State Democratic Executive Committee and said sub-committee so appointed by the chairman thereof have the sole and exclusive right, power and authority to hear, consider and decide said contests, and that neither the circuit court nor any judge thereof has any power or authority or jurisdiction with respect to such contests so pending before said State Committee nor to interfere with or delay hearing and determination of such contests. It is further charged, upon information and belief, that the acts of respondent as circuit judge in making such orders for such delays in hearing in said proceedings for such long and unreasonable time or times constitute a conscious or unconscious participation on the part of said circuit judge in the plan and purpose of the contestees therein to hinder or delay the final hearing and determination of said contests.
Wm. S. Pritchard and Victor H. Smith, of Birmingham, for applicants.
Richard T. Rives, of Montgomery, for respondent.
Petition for Writ of Prohibition
For the first opinion, one by the court, and as governing decision in this election contest, see Ex parte May, 253 Ala. 684, 46 So.2d 836.
The court being in vacation until October, this petition was presented to the senior presiding justice and heard and considered by the above justices, after oral argument of the parties.
Since it was prima facie within the reasonable discretion of the respondent judge to grant the contestees time within which to procure and present their evidence in opposition to that of contestants as regards the truth, vel non, of paragraph 14 of the original petition for writ of prohibition presented to the respondent judge (as noticed in the first opinion, supra), and since, moreover, no good purpose would be served by the issuance of the rule nisi returnable when the court reconvenes in October, we have deemed it proper to exercise our discretion and refuse the rule.
However, in view of the seriousness of the charge made in the instant petition against the respondent on the basis of certain of his remarks, when the order was entered granting the continuance, we deem it proper to further extend these comments.
The opinion, supra, holding "that the averments of Paragraph 14 of the petition presented to the circuit court were sufficient to invoke its jurisdiction to issue the rule nisi" and that "all the other grounds of the petition presented * * * were insufficient to invoke its jurisdiction" was manifestly not dictum, but went to the heart of the case. This opinion was delivered to guide the respondent in the trial of the cause and as aid to the parties in accumulating their evidence and for the trial. Such opinions have heretofore been promulgated in rare instances where the court considered the importance of the case demanded and in delivering the opinion, supra, the court was but following precedent.
But, regardless of the intendment of the remarks of the respondent, set forth in the instant petition, and the interpretation put upon them by the instant petitioners, we do not think that the respondent will ignore and disregard the plain-spoken word of the Supreme Court and that when the cause comes on for trial August 21st he will not only follow that opinion, but will also try the case with his usual dispatch and fairness. See Johnson v. Glasscock, 2 Ala. 519.
We also deem it not inappropriate to point out that the question was a close one as to whether the court should lay hand on the contest at all. But certainly the only proper matter available for contest in the court is that as averred in paragraph 14 of the said original petition.
So considered, none of the foregoing justices are willing to order issuance of the rule.
Rule nisi denied.