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Document By WESTLAW
220 Ala. 309
Supreme Court of Alabama.
DAVIS
v.
TEAGUE.
7 Div. 889.
Nov. 7, 1929.As Modified on Denial of Rehearing Dec. 19, 1929.
**52 *310 The substance of the grounds of contest is that contestee was not, on November 6, 1928, eligible to be elected to said office, not being a qualified elector of said county on said date, for the reason that he was delinquent or had not paid his poll tax for the years 1901, 1902, 1903, 1904, 1905, 1916, and 1917.
The special finding of facts made by the trial judge and judgment rendered thereon are as follows:
“The court finds the contestant to be a man thirty–six years of age, and a resident citizen of Ashville, in St. Clair County, Alabama, and reached the age of twenty–one in 1914, and registered as a voter of St. Clair County in 1914. That he entered the service of the United States as a soldier during the World War, to–wit: On May 15th, 1918, and was honorably discharged from the United States Army on the 7th of June, 1919; that he enlisted under the name of Theodore D. Teague, which, from the evidence, the court finds to be his correct name. That he never lived in any other State or county than Alabama and St. Clair County, and that he paid all poll taxes due by him until the adoption of the amendment to the Constitution exempting ex–soldiers of the World War from the payment of poll tax, and that he, therefore, was a qualified elector on November 6th, 1928, the date of the election herein questioned, and is now such qualified elector in said St. Clair County.
“The court further finds that Mack Davis, the contestee, was born in St. Clair County, on May the 26th, 1872; that he remained in St. Clair County until he was about nineteen years of age, at which time he went to Oklahoma and remained there two years; then went to Colorado and remained a little over two years; then went to Leavenworth, Kansas, and remained over two years, and from Leavenworth, Kansas, to Galveston, Texas, and remained in Galveston, Texas, until he joined the army in the Spanish–American War, in 1898 at Galveston, Texas; that he remained in the army a little over eleven months, and then went back to Galveston, Texas. That he remained in Galveston until June, 1901, and then came to Alabama, and to St. Clair County; and from St. Clair County he went to New York and remained there a little better than three months, and was in New York on the first day of October, 1901; he then came back to Alabama and remained here in St. Clair County until September, 1902, and registered as a voter in St. Clair County, and in Beat 8 thereof, in May of 1902. In September, 1902, after having married during Christmas of 1901, went to Galveston, Texas, where he remained until October or November of 1905. That he cast his first vote in Topeka, Kansas, in 1896. That he paid no poll taxes in St. Clair County for either of the years 1901 or 1902.
“I further find that the contestee became forty–five years of age on the 26th day of May, 1917, and that, therefore, he was due no poll tax on the first day of October, 1917, but that he was liable for poll taxes due on the first of October, 1916.
“I find that the contestee paid all poll taxes due by him to the State accruing on the first day of October, 1906, 1907, 1908, 1909, 1910, 1911, 1912, 1913, 1914, 1915; and that the poll tax records of St. Clair County so disclose; that he has voted in every election held in St. Clair County, since the year 1908, and that, so far as could be ascertained, his name has appeared on the certified list of registered *311 voters made by the probate judge of St. Clair County and published in the Ashville Aegis, a **53 newspaper published in St. Clair County, Alabama.
“That the poll tax records kept, and required by law to be kept, in the office of the probate judge, nowhere disclose the payment of a poll tax by the contestee, for the year beginning October the first, 1916; and that the contestee has poll tax receipts for each year beginning October 1st, 1906, and up to and including poll tax due October first, 1915, but has no tax receipt for the year beginning October 1st, 1916. And the court finds that the poll tax due October 1st, 1916, was not paid; and that the contestee was due the State of Alabama, on November 6, 1928, his poll taxes for the years 1901, 1902 and 1916.
“The court further finds that the contestee paid to the tax collector of St. Clair County, on November 27th, 1928, Ten Dollars and Fifty cents ($10.50), poll taxes for the years 1901, 1902, 1903, 1904, 1905, 1916 and 1917, which payment was accompanied by a letter signed by the contestee in which he contended that he was not due the poll taxes for the years mentioned, but that he was making said payment for the purpose of removing all doubt whatsoever as to whether or not he was due the State and County any poll taxes.
“The court, therefore, finds that on the first day of February, 1928, the contestee was due the State and County his poll taxes for the years 1901, 1902 and 1916.
“It is therefore considered, adjudged and decreed by the court that the contestee be and he is hereby ousted from said office of clerk of the circuit court of St. Clair County, and that said office be and the same is hereby declared vacant.”
Attorneys and Law Firms
C. R. Robinson, of Ashville, and O. D. Street & Son, of Birmingham, for appellant.
James A. Embry, of Ashville, and M. M. Smith, of Pell City, for appellee.
Opinion
BROWN, J.
The appellant's first contention is that the statement of contest filed by the appellee is fatally defective, because it does not “state facts” showing that contestant is a qualified elector; the petition merely averring, in the language of the statute, that he was such elector. Code 1923, § 550. We are of opinion that this contention is without merit. The statute confers the right of contest on “any elector” choosing to contest, and, while an averment that the contestant is such elector is a jurisdictional fact, essential to the invocation of jurisdiction to hear the contest, Pearson v. Alverson, 160 Ala. 265, 49 So. 756, yet where, as here, the averment follows the prescription of the statute averring “the name of the party contesting, and that he was a qualified voter when the election was held,” it is sufficient. Code 1932, § 550, subd. 1; 9 R. C. L. 1167, § 155.
The appellant's next contention is that the failure of the contestee to pay poll tax due from him for one or more years prior to his election did not render him ineligible to election to office; that, though section 2575 of the Code disqualifies one who is not a qualified *312 elector from holding office, the disqualification may be removed subsequent to the election, by the payment of all poll taxes due. The argument advanced in support of this contention is that the court in construing and applying the statute, Code of 1907, § 1467, in Finklea v. Farish, 160 Ala. 230, 49 So. 366, “did not note with sufficient care the verbiage” of the statute, and this lack of care superinduced its erroneous interpretation.
The question was considered in the later case, Shepherd v. Sartain, 185 Ala. 439, 64 So. 57, 61, and it was there observed, in respect to the first six subdivisions of the statute: “It is settled in this state, in harmony with reason and the weight of judicial authority, that ‘ineligible’ here means inelectable–that is, not capable of being chosen–and hence the qualifications enumerated relate to the date of election, and not merely to the date of actual induction into office.”
This statute has, since these interpretations, been brought forward in the Code of 1923, and readopted by the Legislature without change of verbiage, carrying with it the previous interpretation, and this, under numerous decisions of this court, forecloses further controversy as to its meaning. Spooney v. State, 217 Ala. 219, 115 So. 308; Barnewall v. Murrell, 108 Ala. 366, 18 So. 831.
Appellant's next contention is that appellee failed to sustain the averment of his statement of contest; that he was a qualified voter at the time of said election, by legal and competent evidence.
Among other items of evidence offered and received pertaining to this question, over appellant's objection, was the book made of the county registrars containing an alphabetical list of registered voters of Ashville, precinct No. 1, St. Clair county, for the year 1914, and returned by them to the office of the probate judge, under the provisions of section 318 of the Code of 1907, section 401 of the present Code.
When this section of the Code is read in connection with the preceding sections of article 3 of chapter 19 of the Code (section 370 et seq.), we think it is clear that the “registration list” made in the book furnished by the secretary of state under the provisions of section 397 of the Code, and returned to the judge of probate by the registrars under the provisions of section 401, must be regarded and held to be the official register–the permanent record–of qualified voters.
In the book offered by the appellee appeared the name “Duette Teague,” born October 18, 1893, and in connection with this official register appellee testified that his name was “DeWitte Teague”; that the date of his birth was October 18, 1893; that he was the only person in Ashville precinct at the time of said registration named DeWitte Teague or “Duette Teague”; that when he registered he gave to the registrar his name as “DeWitte **54 Teague”; that there was no “Duette Teague” living in Ashville precinct at that time; that the only other Teague living in Ashville precinct in 1914, who was then over 21 years, besides the witness, was witness' brother, A. G. Teague, two years older.
This parol testimony was admissible to identify the appellee as the person registered as “Duette Teague.” Moseley's Adm'r v. Mastin, 37 Ala. 216; Mobile County v. Linch, 198 Ala. 57, 73 So. 423; Jones on Ev. § 451.
Appellee admitted that he had not paid a poll tax for the years subsequent to 1919, but testified that he had paid all poll taxes due by him up to and including said year, and gave evidence going to show that he honorably served in the military or naval service of the United States, between January 1, 1917, and November 11, 1918, and was honorably discharged from the service.
On the trial, and now, he invokes the provisions of the Fourteenth Amendment to the Constitution of 1901, adopted and ratified November 4, 1924, as a part of the present Constitution of this state, as relieving him from the necessity of paying poll tax to maintain his status as a legal voter. Said amendment reads as follows: “Section 194 1/2. ‘No person who honorably served in the Military or Naval service of the United States between January 1, 1917, and November 11, 1918, shall be required to pay the poll tax mentioned in the Constitution of Alabama; such persons shall be exempt from the payment of all poll taxes which have accrued or may hereafter accrue. This section shall be self executing and retroactive. The Judges of Probate shall issue certificates of exemption from the payment of such poll taxes to the persons entitled thereto under such rules and regulations as may be prescribed by the Governor.”’ See General Acts 1923, page 573, § 194 1/2.
Appellant's contention here is that said section offends the provisions of the Fourteenth Amendment to the federal Constitution, in that it deprives him of the equal protection of the law, citing in support of this contention. McLendon v. State, 179 Ala. 54, 60 So. 392, Ann. Cas. 1915C, 691, holding that a statute which levied a license tax on all persons engaging in a certain business, except Confederate soldiers who were exempt, was violative of the Fourteenth Amendment to the federal Constitution.
The right of suffrage and the right to hold an office under authority of the state, unlike the right of a citizen to engage in a gainful occupation, is not considered, as a general rule, a privilege or immunity belonging to a citizen of the United States, nor an inherent or natural right existing in the absence of constitutional provision or legislative enactment. It is rather considered as a political privilege or *313 civil right under the control of the state, which it may regulate or restrict, so long as the right of suffrage is not denied to any person on account of race, color, or previous condition of servitude. Washington v. State, 75 Ala. 582, 51 Am. Rep. 479; 6 R. C. L. 287, § 273; Minor v. Happersett, 21 Wall. 162, 22 L. Ed. 627; United States v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588; Maxwell v. Dow, 176 U. S. 581, 20 S. Ct. 448, 44 L. Ed. 597.
The obligation to pay a poll tax is not an obligation that may be enforced by legal process or otherwise, but is an obligation to be performed voluntarily as a test of good citizenship, leaving to each individual otherwise qualified the right to determine whether he will qualify as a legal voter or not. Constitution 1901, §§ 194, 195.
We are therefore clear to the conclusion that the provisions of section 194 1/3 in no way impinge the provisions of the Fourteenth Amendment of the federal Constitution, and there is no contention, nor ground for contention, that they offend the provisions of the Fifteenth Amendment.
The appellant's next contention is that records or books kept in the office of the judge of probate, purporting to contain a list of persons who paid poll taxes for the years 1901 to 1922, were not authorized by law, and were therefore not admissible as evidence. This contention is in the teeth of the decision of this court in Shepherd v. Sartain, supra, and the statutes authorizing and requiring such record to be “entered in a suitable book for that purpose, provided at the expense of the county,” and filed in the office of the judge of probate. Code 1907, § 2079; Code 1923, § 3035, 453, 454, and 455.
The fact that the judge of probate did not know, and had never looked to see, whether or not appellant had paid poll taxes for each year, until this controversy arose, was material as tending to explain why appellant's name appeared on the lists issued by the witness as judge of probate, and to rebut the inference arising therefrom that appellant had paid all poll taxes required to maintain his status as a legal voter.
If in fact the appellant was not a qualified elector because of his failure to pay poll taxes, and his name appeared on the list of qualified voters through mistake or omission of duty of the judge of probate, the fact that his right to vote had only been questioned once before this contest arose was not material, and such fact, if it had been proven, was without legitimate tendency as showing such status.
While the registration list and book prepared and kept by the county board of registrars is conclusive as to the fact of the registration of those voters whose names affirmatively appear thereon, we see no impropriety in the action of the court in allowing the contestant to show, by cross–examination of the contestee, if he had knowledge of the fact that, during the years from 1902 to 1905, contestee's name appeared on the list, and that he (contestee) held a registration certificate.
The insistence that the case should be **55 reversed because of the statement of counsel for appellee in argument to the court, “that if any county ever had an efficient tax collector it was when St. Clair County had B. M. Hill as its tax collector,” we regard as frivolous. The rule for reversal because of improper statement made by counsel in argument to a jury has never been applied to trial before the court, without a jury. The authority cited by appellant deals with “the general principles governing argument by counsel before a jury.” 2 R. C. L. 404, § 1.
The appellant's next contention is that the contestant failed to prove that the contestee was declared elected to the office of clerk of the circuit court of St. Clair county. Courts take judicial notice of the commissioned officers of the state, the date of their commission, and the commencement and expiration of their term of office. McCarver v. Herzberg, 120 Ala. 534, 25 So. 3; Cary v. State, 76 Ala. 78; Sandlin v. Anderson, 76 Ala. 403.
Courts take judicial notice not only of who are, but who were in the past, clerks of said court, and may refuse to receive proof thereof. White v. Rankin, 90 Ala. 541, 8 So. 118; Cary v. State, supra; Wall v. State, 78 Ala. 417; Adler v. State, 55 Ala. 16.
The case was tried on record evidence and evidence given ore tenus, and the trial judge made a special finding of the facts, finding that the appellant had failed to pay on or before February 1, 1928, poll taxes due from him for the years 1901, 1902, and 1916, and therefore he was not a qualified elector on the 6th of November, 1928, and was not eligible to election to the office of clerk of the circuit court of St. Clair county.
After a careful review of the evidence in the case, we are not able to say that this conclusion is so manifestly against the weight of the evidence as to justify a reversal of the case on this finding of facts. Shepherd v. Sartain, 185 Ala. 439, 64 So. 57.
Affirmed.
ANDERSON, C. J., and SAYRE and THOMAS, JJ., concur.
All Citations
220 Ala. 309, 125 So. 51| End of Document | © 2024 Thomson Reuters. No claim to original U.S. Government Works. |