Walker v. Junior , 247 Ala. 342 ( 1945 )

A brief response to the application for rehearing is deemed proper because of an apparent misinterpretation accorded the original opinion and in deference to counsels' cogent argument for a modification of it.

Rather than approving, in an election contest proceeding, an inquiry into the validity of the election (denounced in Wade v. Oates, 112 Ala. 325, 20 So. 495) because of the vitiating circumstances hereinabove referred to (non-use of an official ballot), our opinion holds exactly the contrary, that the invalidity may not be raised in such a contest and that, in this contest, because of the vitiating character of all the attempted voting as disclosed by the evidence introduced by contestants, the motion of contestees to exclude that evidence was proper because inadmissible, to the result that we affirmed the judgment of the lower court in that ruling and in dismissing the contest.

Neither is there warrant in construing the decision as declaring the Fruithurst election void. No such adjudication was made or possible for, as pointed out in the original opinion, the statute does not authorize the rendition of that kind of judgment in such a proceeding any more than it does the adjudication of one as elected unless having received a plurality of legal votes. Code 1940, Title 17, § 250. Hence the expunction from the order of the lower court of any adjudication, under that state of the evidence, as to who had been elected.

The contest proceedings now standing dismissed, the instant status of contestees, as duly elected officials of the town of Fruithurst, is as if no proceedings of any character had been instituted against them. Our original holding was simply that the election would be (not, was) void under the state of the evidence (if true) so far adduced (that for contestants) thus rendering that evidence inadmissible in the contest case and subjecting it to contestees' motion to exclude.

We reassert the obvious, that § 165, Title 17, Code 1940, is mandatory to the extent that an official ballot is essential to the validity of the enumerated elections and that balloting on ex parte slips of paper submitted by individual voters or furnished by other unauthorized persons is illegal, will not be counted and, if such was the balloting, there, of necessity, could be no election, hence void. "The choice of the person elected is determined by the plurality of legal votes. (Citing statute) The plurality of votes, then, * * * indicates and declares the popular will; and the person having the highest number of legal votes is elected." Ex parte Reid, 50 Ala. 439,442. A fortiori if there were no legal votes, there was no election.

Our election law does authorize an elector desiring to vote for a person whose name does not appear upon the official ballot to do so by writing the name of such person in a proper place thereon, § 162, Title 17, Code 1940, but this character of voting presupposes the distribution and use of an official ballot, viz., in this case, a ballot provided or caused to be provided by the mayor as the law directs.

Of such import are the decisions in Reed v. State, 234 Ala. 306,174 So. 498, and Garrett v. Cunninghame, 211 Ala. 430,100 So. 845, and in each case it was indicated that an official ballot, namely, the ballot caused to be printed and distributed by the persons authorized by law so to do, was used and the decisions must rest on this theory. As to the mere irregularities in the preparation of that ballot by such officials, it was aptly observed in the Reed case [234 Ala. 306,174 So. 500], "the right of the electors could not be restricted by the error of the official upon whom the law imposed the duty of preparing and having printed the ballots for the election," and in the Garrett case [211 Ala. 430,100 So. 854], that such ballots may not be rejected if that conduct (of the election officials) did not prevent "a fair, free and full exercise of the elective franchise as to the office in question."

But these and no other cases so far as we know should or could be interpreted as approving the validity of an election where the official ballot was withheld by the election officials and the purported ballots furnished to and used by the voters were mere unauthorized, ex parte slips of paper prepared without authority of law and containing the names of only those candidates it pleased the election holders to be listed and voted for. (Note, we do not state this to be the fact, but that such was the tendency of contestants' evidence — that adduced.)

It is apodictic that the law could not validate such an election in the face of the statute (§ 165, Code) mandating that none but official ballots shall be received or counted; and, equally axiomatic, a judgment adjudicating one to have been duly and legally elected in such an election, if seasonably challenged, cannot stand.

Nothing in Garrett v. Cunninghame, supra, is contrary to this salutary principle, so necessary to safeguard the purity of an election, but to the contrary that case clearly affirms the principle of interpreting as mandatory a provision of an election statute that affects an essential element of the election or is expressly declared by the statute to be essential to the validity thereof. 211 Ala. at page 438, 100 So. at page 853. To the extent we have indicated, is the mandatory nature of said § 165.

Nor do we construe the case of Wade v. Oates, supra, as approving the use of a piece of paper furnished by unauthorized persons rather than an official ballot, or holding (the now) § 165 as merely directory. The other "mere irregularities, — disregard of directory provisions * * * —" mentioned in the opinion (112 Ala. at page 332, 20 So. at page 497), related to other features of the case, applicable to other sections of the law.

This court, in consultation, has given studious consideration to the able brief and argument of counsel on rehearing, but is strongly convinced of the correctness of the conclusions hereinabove which are consistent with the intent and scheme of our election laws to preserve a free and fair election and, in this view, not out of harmony with former holdings.

The application must be overruled.

Opinion extended and application for rehearing overruled.

GARDNER, C. J., and BROWN and LIVINGSTON, JJ., concur.