Ex Parte Skidmore

168 So. 2d 483, 277 Ala. 221, 1964 Ala. LEXIS 504

• Court: Supreme Court of Alabama
• Decided: October 26, 1964
• Docket: 7 Div. 664
• Status: Published

Opinions

GOODWYN, Justice.

This is an original petition for a writ of prohibition, or other appropriate writ, to prohibit a circuit judge from exercising jurisdiction of a mandamus proceeding filed in his court in connection with a contest of a nomination for office by a political party. We issued a rule nisi. The respondent judge has moved to strike the petition and to quash the rule nisi; and, without waiving said motions, he has demurred to the petition; and, without waiving said motions and demurrer, he has made a return and answer to the rule nisi. Our conclusion is that the motions to strike and quash are due to he denied, the demurrer overruled, and a peremptory writ of prohibition issued, as prayed for in the petition; and it is so ordered.

Essentially, the situation is this:

Charles A. Formby and Paul C. Jordan were candidates in the Democratic primary of May S, 1964, for nomination for the office of Judge of Probate of Cherokee County. Jordan was declared the nominee. Formby then contested said nomination before the Cherokee County Democratic Executive Committee. After a hearing on the contest, the County Committee determined that a new primary election should be held to nominate said Judge of Probate. From this ruling, Formby appealed to the State Democratic Executive Committee. The chairman of that committee appointed a subcommittee of three members to hear the contest. After a hearing, the subcommittee declared Formby to be the nominee and he was so certified. Jordan then filed in the circuit court of Cherokee County a petition for mandamus to require the subcommittee to declare and certify him as the nominee. The Circuit Judge (Jack Livingston) ordered the issuance of the alternative writ of mandamus, as prayed for. The subcommittee members filed a plea in abatement in the mandamus proceeding. Jordan’s demurrer to said plea was sustained. The subcommittee members then filed a motion to quash the mandamus petition. The motion was denied. Thereupon, the subcommittee members filed the original petition for prohibition now before us.

After granting the alternative writ of mandamus, Judge Jack Livingston recused himself and Judge Mike Sollie, III, was appointed to hear the case. The rulings on the subcommittee’s plea in abatement and motion to quash were made by Judge Sollie. He is made the respondent in the prohibition proceeding now before us.

Since a decision on the merits of the petition for a writ of prohibition will determine the propriety of Judge Sollie’s rulings on the motion to strike said petition and the motion to quash the rule nisi, we preter-mit any discussion of those rulings.

The legislature has deemed it wise to commit primary election contests to party tribunals. See: Code 1940, Tit. 17, §§ 373-394; Ex parte Pollard, 251 Ala. 309, 37 So.2d 178; Ex parte State ex rel. Bragg, 240 Ala. 80, 197 So. 32. It has been held that, when a party committee’s jurisdiction to hear a contest of a primary election has been invoked, the committee acquires exclusive jurisdiction to hear the contest, and the circuit court is without power to invade or defeat such jurisdiction. See: Ex parte State ex rel. Bragg, 240 Ala. 80, 197 So. 32, supra. There is no dispute that the county committee acquired initial jurisdiction of the contest. And when that committee directed the holding of a new primary election, Formby had the right to “take an appeal to the State Executive Committee, which shall be the court of final appeal in all party contests of nominations.” See: Code 1940, Tit. 17, § 388, supra; Smith v. McQueen, 232 Ala. 90, 166 So. 788. Also, see:’ Tit. 17, § 382. The appointment of the subcommittee, petitioners here, to decide the contest was authorized by Code 1940, Tit. 17, § 394. So, the petitioners had jurisdiction to determine the contest. The question presented, then, concerns the authority of the circuit court to entertain Jordan’s petition for mandamus. The obvious effect of such proceeding, if entertained by the circuit court, would be to oust the subcommittee of its jurisdiction, given by statute, to determine the contest. That would be contrary to the statutes, supra, providing for party contests, as construed by this court in the cases cited, supra.

The circuit court, being without power to invade or defeat the subcommittee’s jurisdiction, is without power and jurisdiction to entertain the petition for mandamus. Accordingly, the peremptory writ of prohibition, as prayed for, is due to be granted.

Writ granted.

All the Justices concur except COLEMAN, J., who dissents.