Bennett v. Cottingham Jurisdictional Statement

    I n  t h e

Ihtpratt? ©mirt ni Hit li&mteb States
O ctober T e r m , 1968 

No.............

L o uise  T u c k e r  B e n n e t t , J ames R obertson , J u l ia n  M ay 
J ackson , suing by his mother and next friend Corine 
Jones and S a m u el  R. P erry m a n , each individually and 
on behalf of all others similarly situated,

Appellants,

D . S. C o t t in g h a m , George E . D a iley , Gl e n n  T ibbs , L ouie  
B oggs, L loyd R ow e , A lic e  P ratt , Cliffo rd  W ard, F r e e ­
m a n  M u r p h y , Justices of the Peace in Bibb County, 
Alabama; H arold D a iley , Sheriff of Bibb County, Ala­
bama; M cD onald Ga llio n , Attorney General of the 
State of Alabama and G eorge W h it e , County Solicitor 
of Bibb County, Alabama,

Appellees.

o n  a p p e a l  f r o m  t h e  u n i t e d  s t a t e s  d i s t r i c t  c o u r t

FOR T H E  NO RTH ERN DISTRICT o f  ALABAMA

JURISDICTIONAL STATEMENT

J ack  Greenberg
M ic h a e l  M eltsn er

M elvyn  Z arr
10 Columbus Circle 
New York, New York 10019

O scar W. A dams, J r.
H arvey M. B urg

1630 Fourth Avenue North 
Birmingham, Alabama 35203

A n t h o n y  G. A m sterdam  
3400 Chestnut Street 
Philadelphia, Penna. 19104

Attorneys for Appellants

JA M E S  M. N'ABRilT, HI



I N D E X

PAGE

Opinion Below ..............................................................  1

Jurisdiction -.....-.......... -..... -.....-....-.......... - ........... -.... - 2

Question Presented ................. -....................................  2

Statement of the Case .................................................. 2

The Question Presented Is Substantial
Whether a State Practice Which Requires Law 
Enforcement Officers to Meet a Quota of Arrests 
in Order to Receive Compensation Can Be Squared 
With the Fourteenth Amendment Is a Substantial 
Question Requiring Resolution by This Court .... 8

CONCLUSION ...................... ....-......... -.....- .......................  12

A ppe n d ix

Opinion Below ......................................................... ^a
Judgment Below ... ................................................  10a

T able oe Cases

Harper v. Virginia State Board of Elections, 383 U. S.
663 (1966) ....... -.................................................-.....- 2

Hill v. United States, 328 F. 2d 988 (5th Cir. 1964) 10
Hulett v. Julian, 250 F. Supp. 208 (M. D. Ala. 1966) .... 7

Sibron v. New York, 392 U. S. 40 (1968) .....................  9



ii

PAGE

Terry v. Ohio, 392 U. S. 1 (1968) ...............................  9
Turney v. Ohio, 273 U. S. 510 (1927) .........................6, 7, 9

Williamson v. United States, 311 F. 2d 411 (5th Cir. 
1963) ........................................................................... 10

Statutes:

28 U. S. C. §1253 ..... ..................................................... 2
28 U. S. C. §1343 ..........................................................  2, 6
28 U. S. C. §2201 .............................. - .......................... 2, 6
28 U. S. C. §2281 ..........................................................  2, 6
42 U. S. C. §1983 ........... ................................ ...............  2, 6
Code of Ala. Tit. 11, §§96, 97 ........ ..............................  7
Code of Ala. Tit. 11, §100 ............................................ 4

Other Authorities:
The President’s Commission on Law Enforcement and 

the Administration of Justice, Task Force Report, 
“The Police” (1967) .........       10,11

United States Commission on Civil Rights, “Political 
Participation” (1968) ................................................  11



I n  t h e

j§>uprTm? ©curt 0! %  luttefc States
O ctober T e e m , 1968 

No.............

L o uise  T u c k e r  B e n n e t t , J ames R obertson , J u l ia n  M ay 
J a ckson , suing by his mother and next friend Corine 
Jones and S a m u e l  R. P erry m a n , each individually and 
on behalf of all others similarly situated,

Appellants,
— v . —

D. S. C o tt in g h a m , G eorge E. D a iley , Gl e n n  T ib b s , L ouie  
B oggs, L loyd R ow e , A l ic e  P ratt , Cliffo rd  W ard, F r e e ­
m a n  M u r p h y , Justices of the Peace in Bibb County, 
Alabama; H arold D a iley , Sheriff of Bibb County, Ala­
bama; M cD onald G a llio n , Attorney General of the 
State of Alabama and George W h it e , County Solicitor 
of Bibb County, Alabama,

Appellees.

ON APPEAL FROM T H E  U N ITED STATES DISTRICT COURT 
FOR T H E  NO RTH ERN DISTRICT OF ALABAMA

JURISDICTIONAL STATEMENT

Opinion Below

The opinion of the court below is as yet unreported and 
is set forth in the Appendix, p. la, infra.



2

Jurisdiction

This is a civil action brought pursuant to 28 U. S. C. 
§§1343 and 2201 and 42 U. S. C. §1983 for declaratory and 
injunctive relief against the operation of statutes of the 
State of Alabama which provide a pecuniary inducement 
to the performance of official acts of justices of the peace 
and sheriffs in Alabama.

The judgment of the United States District Court for the 
Northern District of Alabama was entered June 27, 1968 
(R. 56; App., pp. lOa-lla, infra).1 Timely notice of appeal 
to this Court was filed August 21, 1968 (R. 58).

Jurisdiction of this Court is invoked pursuant to 28 
U. S. C. §1253 to review the judgment of the district court 
of three judges necessarily convened pursuant to 28 U. S. G. 
§2281. See, e.g., Harper v. Virginia State Board of Elec­
tions, 383 U. S. 663 (1966).

Question Presented

Does a state practice of paying law enforcement officers 
only if they make a minimum number of arrests offend the 
Fourteenth Amendment to the Constitution of the United 
States ?

Statement of the Case

Bibb County, Alabama is a rural county through which 
pass three major highways (R. 52; Tr. 125; App., p. 4a, 
infra). The Mayor of Centreville, the county seat of Bibb

1 “R.” refers to the record of pleadings and orders, which is 
paginated independently of the transcript of the trial below, re- 
fered to herein as “Tr.”



3

County, testified concerning the conduct of the Sheriffs 
office, especially with respect to enforcement of highway 
laws (Tr. 22-23):

We had received complaints from all over the state, 
people everywhere, that they could not get through 
Bibb County. We had received complaints from Ne­
groes in Jefferson County . . .  I would say a large per­
centage of the Negroes of Jefferson County are made 
up of Negroes who formerly lived in the Black Belt 
and . . . have migrated to the larger cities.

Usually on Friday afternoon, a lot of these Negroes 
will start back to visit some of their folks who live in 
the Black Belt, and there are always a large number 
of cars on Friday and Saturday, and they would start 
back to Birmingham on Sunday. It was hard for them 
to get through Bibb County, the Negro population, and 
it was hard for white people, especially the out of 
county people. The records will show a large per­
centage of the people that were caught in this speed 
trap were out of county folks.

Sheriff Harold Dailey of Bibb County maintains and 
must pay a staff of three full-time deputies and one part- 
time deputy, a bookkeeper and a jailer (11. 50; Tr. 58-61, 
65-66; App., p. 3a, infra). The expenses of his office aver­
age about $3,000 per month (Tr. 38-49; Plaintiffs’ Exhibits 
3-6).2 He receives a salary of $50 per month for services

2 In 1967, the office paid an average of approximately $1,250 per 
month to the Sheriff’s employees and expended an average of ap­
proximately $1,750 per month for maintenance of patrol cars and 
the jail and for miscellaneous expenses.

Salary items paid to two of the Sheriff’s deputies by the County 
Board of Revenue are excluded from these figures. See notes 5, 6, 
infra. The salaries account for less than half of the acknowledged 
compensation of the deputies, do not flow through the Sheriff’s 
office, and are not material to the financial operations of the office.



4

rendered respecting elections (R. 50; Tr. 72-73; App., p. 
3a, infra). He also receives about $200 per month from 
the State for maintaining prisoners in the county jail 
(Plaintiffs’ Exhibit 21). The only remaining acknowledged 
source of income of the office is the fee he receives for each 
arrest (R. 50; Tr. 40-41, 59, 61; App., p. 3a, infra). See 
Code of Ala. Tit. 11, §100.3 Accordingly, in order to meet 
the expenses of his office—and to make a living wage for 
himself—he and his deputies must make a sufficient number 
of arrests. This they do.

The Sheriff and his deputies make enough arrests to 
bring in an average of approximately $3,000 per month in 
fees.4 The Sheriff may elect to charge an offense in either 
the Justice of the Peace Court or the Circuit Court (Tr. 
139-40). In the Justice of the Peace Court, where the 
Sheriff prosecutes the offense, the Sheriff receives his 
fee only upon conviction (R. 50; Tr. 62; App., p. 3a, infra). 
In the Circuit Court, only the Sheriff’s mileage fee (see 
note 3, supra) is lost if there is no conviction (R. 50; 
Tr. 62; App., p. 3a). In 1967, income from the Justice of 
the Peace Court averaged approximately $1,650 per month 
(Plaintiffs’ Exhibit 20); income from the Circuit Court 
averaged approximately $1,300 per month (Plaintiffs’ Ex­
hibits 18, 22). The Sheriff pays his chief deputy $2.00 
per arrest for each arrest in excess of an office threshold 
of 100 arrests per month (R. 51; Tr. 50, 127; App., p. 3a,

3 The components of the fee a re : $5.00 for the statutory fee for 
arrest prescribed by Code of Ala. Tit. 11, §100; $2.00 for the statu­
tory bond fee prescribed by §100; $.75 as a witness fee; and a 
mileage fee. See Tr. 54. The Sheriff could give no explanation for 
the fact that the fee in a great number of eases amounted to $14.90 
(Tr. 56; Plaintiffs’ Exhibit 20).

4 In 1967, the average fee amounted to $14.22 per arrest (Plain­
tiffs’ Exhibit 20; Tr. 86-89).



5

infra).5 Another deputy is paid $1.00 per arrest for each 
arrest in excess of this office threshold (R. 51; Tr. 59: 
App., p. 3a, infra).5 Justice of the Peace George E. Dailey, 
uncle of the Sheriff, and other justices receive $3.00 per 
case if they convict, hut nothing if they acquit (R. 51; App., 
pp. 3a-4a, infra).

In response to complaints of a speed trap in Bibb County, 
the Alabama Motorists Association commissioned an in­
dependent audit of the fees paid to the Sheriff (Tr. 35-36). 
This audit revealed a dramatic increase in recent years 
in the Sheriff’s earnings. See Plaintiffs’ Exhibit 20; Tr. 
87-89. In the Justice of the Peace Court alone, the Sher­
iff’s income rose from $1,137.00 (137 arrests) in 1962 to 
$19,680.00 (1384 arrests) in 1967.7

5 The chief deputy receives a salary of $355 per month from the 
County Board of Revenue. This sum does not flow through the 
Sheriff’s office, and it is not included in the statement of expenses of 
the office—about $3,000 per month—in text, supra. The chief 
deputy’s incentive pay from the Sheriff (which is included in the 
statement of office expenses) exceeds the salary paid by the Board 
of Revenue (Tr. 136-37).

6 This deputy receives a salary of $200 per month from the 
County Board of Revenue (Tr. 59). This sum does not flow through 
the Sheriff’s office, and it is not included in the statement of ex­
penses of the office—about $3,000 per month—in text, supra. This 
deputy’s incentive pay from the Sheriff (which is included in the 
statement of office expenses) exceeds the salary paid by the Board 
of Revenue (Plaintiff’s Exhibit 29).

7 The increasing lucrativeness of the Sheriff’s practice may be 
tabulated as follows:

T ear Num ber of A rrests Sheriff’s Fees
Average 

Sheriff’s Fee

1962 137 $ 1,137 $ 8.30
1963 276 3,173 11.50
1964 404 4,767 11.80
1965 585 6,905 11.80
1966 1018 13,625 13.38
1967 1384 19,680 14.22



6

On November 30, 1967, appellants Bennett, Jackson and 
Robertson, Negro licensed motorists residing outside Bibb 
County, filed an action in the United States District Court 
for the Northern District of Alabama, pursuant to 28 
U. S. C. §§1343 and 2201 and 42 U. S. C. §1983, seeking 
injunctive and declaratory relief against the fee practices 
of the Sheriff and the Justices of the Peace of Bibb County 
and the state statutes supporting those practices (R. 1-9, 
49-50; App., p. 2a, infra).

Appellants Bennett and Jackson had previously been 
arrested, tried and convicted for highway violations in Bibb 
County. They had paid the fees for their arrests and con­
victions to the Sheriff and the Justices of the Peace re­
spectively (R. 50; App., p. 2a). Appellant Robertson had 
been arrested for a highway violation but had not yet been 
tried by Justice of the Peace Dailey (R. 50 ; App., p. 2a).

Appellants claimed that both the Sheriff and the Justices 
of the Peace had a “direct, personal, substantial pecuniary 
interest” in arresting, prosecuting and convicting them, 
contrary to the Fourteenth Amendment to the Constitution 
of the United States [Turney v. Ohio, 273 U. S. 510, 523 
(1927)) (R. 3).

On December 5,1967, District Judge H. H. Grooms issued 
a temporary restraining order, with notice, restraining 
Robertson’s prosecution before Justice Dailey (R. 16-21).

On December 12, 1967, the Chief Judge of the Court of 
Appeals for the Fifth Circuit designated a three-judge 
district court pursuant to 28 I T . S. C. §2281 to hear and 
determine the action (R. 23-24).

On December 18, 1967, Sheriff Dailey filed an answer 
admitting that an actual controversy existed between him-



7

self and the appellants, hut denying that his pecuniary 
interest in arresting and prosecuting the appellants vio­
lated any of their federal constitutional rights (R. 35).8

Subsequent to the issuance of Judge Grooms’ temporary 
restraining order, the number of highway violations insti­
tuted by the Sheriff in the Circuit Court increased, while 
the number instituted in the Justice of the Peace Court 
declined (Plaintiffs’ Exhibit 18). On January 25, 1968, ap­
pellants filed, with leave of the Court, an amendment to the 
complaint alleging this shift in practice and praying that 
the Court declare the Sheriff’s fee arrangement unconsti­
tutional, irrespective of whether fees were earned in the 
Circuit Court or the Justice of the Peace Court (R. 39-41). 
Sheriff Dailey, in an amended answer, admitted that high­
way violations were being made returnable to the Circuit 
Court (R. 46).

After trial on the merits, on June 27, 1968, the district 
court held that Code of Ala. Tit. 11, §§86 and 97, which 
provide for taxation of Justices’ fees as costs upon convic­
tion, were unconstitutional in their application to fines and 
costs collected for highway violations by Justices of the 
Peace (R, 56; App., p. 10a, infra). The Court relied upon 
Tumey v. Ohio, supra,9 and Hulett v. Julian, 250 F. Supp.

8 The answer stated, inter alia (R. 35) :
Defendant . . . admits there is an actual controversy between 

the plaintiffs and the defendants, sheriff and Justices of the 
Peace; however, the defendant Harold Dailey denies that he 
makes the arrests solely for the fees involved.

9 Turney held that “it certainly violates the Fourteenth Amend­
ment and deprives a defendant in a criminal case of due process of 
law to subject his liberty or property to the judgment of a court, 
the judge of which has a direct, personal, substantial pecuniary 
interest in reaching a conclusion against him in his ease” (273 
U. S. at 523).



208 (M. D. Ala. 1966) (three-judge court) (E. 52-54; App., 
pp. 5a-7a, infra).

But the court held that the Sheriff's pecuniary interest 
in arresting and prosecuting did not offend the Fourteenth 
Amendment. The court expressly “decline [d] to extend 
Turney to include the Sheriff and his deputies” (R. 55; 
App., p. 8a, infra). Accordingly, the court dismissed Sheriff 
Dailey as a party defendant (R. 57; App., p. 11a, infra).

From so much of the judgment as dismissed the action 
against Sheriff Dailey, appellants took the instant appeal.10

The Question Presented Is Substantial
Whether a State Practice Which Requires Law En­

forcement Officers to Meet a Quota of Arrests in Order 
to Receive Compensation Can Be Squared With the Four­
teenth Amendment Is a Substantial Question Requiring 
Resolution by This Court.

The record in this case demonstrates that the Sheriff of 
Bibb Comity cannot meet the expenses of his office—or even 
make a living—unless he and his deputies meet a minimum 
quota of arrests. This practice of making a police officer’s 
livelihood depend on an arrest quota cannot be squared 
with due process of law.

No extended argument should he needed to demonstrate 
that an arrest is a significant deprivation of liberty which 
cannot constitutionally be made arbitrarily, discriminatorily 
or pursuant to an official’s personal interest. The revul­
sion to the lettre de cachet which the Framers of the Con-

10 Appellants’ timely notice of appeal was filed August 21, 1968 
(R. 58).



9

stitution expressed in the Fourth Amendment suffices to 
establish that proposition. And this Court has recently 
recognized the gravity, and consequent claim to constitu­
tional limitation, of police practices whose intrusions upon 
the liberty of the citizen were substantially less severe than 
those of an arrest. Terry v. Ohio, 392 U. S. 1 (1968); 
Sibron v. New York, 392 IT. S. 40 (1968).

When an officer makes an arrest without a warrant, the 
Fourth and Fourteenth Amendments require that he make 
a judgment of probable cause. Whatever else this judg­
ment may imply, surely it supposes at the least an impartial 
assessment of the facts and an informed application to 
them of the proper legal standard. It is in the light of 
these elemental principles that petitioner’s constitutional 
submission in the present case, which the court below re­
jected, takes on its clear import and importance. We urge, 
simply, that in making the arrest decision, an officer is 
constitutionally required “to hold the balance nice, clear 
and true” between the State and the citizen {Turney v. 
Ohio, supra, 273 U. S. at 532), free, at least, from the gross 
biasing force of a direct financial inducement to arrest.

Where, as here, the State maintains a practice which 
generates in law enforcement officers such a direct, personal 
and substantial pecuniary inducement to arrest citizens, 
“ [t]he scales of justice are thereby weighted” against citi­
zens’ liberty (E. 53; App., p. 6a, infra). The inducement 
here is not marginal; the Sheriff must either maintain a 
high volume of arrests or go unremunerated. And when 
the Sheriff elects to proceed in the Justice of the Peace 
Court, he must do far more than arrest to secure his fees. 
He must prosecute, and usually he must testify, in order 
to secure a conviction.



10

The court below held that sheriffs and their deputies 
were to be excluded from the operation of the Turney doc­
trine that a citizen’s liberty may not be conditioned upon 
the discretion of an official who has a direct, personal and 
substantial pecuniary interest in depriving him of his lib­
erty (R. 55; App., p. 8a, infra). The court derived this 
conclusion from the following quoted language in Turney, 
273 U. S. at 535 (R. 55; App., p. 8a, infra):

It is further said with truth that the legislature of a 
state may and often ought to stimulate prosecutions 
for crime by offering to those who shall initiate and 
carry on such prosecutions rewards for thus acting 
in the interest of the state and the people. The legis­
lature may offer rewards or a percentage of the re­
covery to informers. United States v. Murphy & Mor­
gan, 16 Pet. 203. It may authorize the employment of 
detectives.

Other courts have not so lightly assumed that evolving 
notions of due process are entirely without relevance to 
the bounty system of compensating even informers. Com­
pare Williamson v. United States, 311 F. 2d 441 (5th Cir.
1963) , with Hill v. United States, 328 F. 2d 988 (5th Cir.
1964) .

But, however this may be, we submit the Court should 
decisively reject the notion that a State or its subdivision 
may condition the remuneration of policemen and prosecu­
tors upon the fulfillment of a quota of arrests and prosecu­
tions, as if it were paying rewards to informers.

The analogy simply does not comport with reality. As 
the President’s Commission on Law Enforcement and the



11

Administration of Justice said in its Task Force Report, 
“The Police,” p. 189 (1967):

Police work is far too complicated and delicate a 
job to judge an officer’s work or qualifications for 
promotion on the number of arrests he has made. Fur­
thermore, arrest quotas, if they exist as either explicit 
requirements or implied expectations, can lead to im­
proper activity by policemen. Patrolling officers have 
the complex and difficult responsibility of exercising 
their discretion based on the circumstances of the par­
ticular case. No part of this calculation should consist 
of the number of arrests the officer has made in com­
parison to a preestablished quota or expectation set 
by the department.

Here, not simply the officer’s advancement but his very 
livelihood depends on his meeting his quota of arrests.

Moreover, this pecuniary inducement to arrest and pros­
ecute creates an evident potential for “improper activity” 
endangering the right of a person not to be denied equal 
protection of the laws. There was testimony below that 
Negroes and out of county motorists were made to bear the 
major financial burden of the Sheriff’s operation (see Tr. 
22-23). This is hardly surprising, since an elected sheriff 
would obviously prefer to impose the major financial bur­
den of his office on nonvoting motorists.11

11 The voting age population in Bibb County is approximately 
25% Negro. The percentage of Negroes registered to vote is just 
under 50%, while the percentage of whites registered to vote is 
over 100%. See United States Commission on Civil Rights, “Politi­
cal Participation,” pp. 224-25 (1968).



12

No police officer, no matter how high-minded or imprac­
tical, conld be expected to ignore the financial pressures 
imposed on him by the State and County. But even if such 
an officer could be found, “the requirement of due process 
of law in judicial procedure is not satisfied by the argument 
that men of the highest honor and the greatest self-sacrifice 
could carry it on without danger of injustice” (Turney, 
supra, 273 U. S. at 532).

CONCLUSION

For the foregoing reasons, probable jurisdiction 
should be noted.

Respectfully submitted,

J ack  G reenberg
M ic h a e l  M e l t sn e r

M elvyn  Z arr
10 Columbus Circle 
New York, New York 10019

Oscar W . A dam s, J r .
H arvey M. B urg

1630 Fourth Avenue North 
Birmingham, Alabama 35203

A n t h o n y  G. A m sterdam  
3400 Chestnut Street 
Philadelphia, Penna. 19104

Attorneys for Appellants



A P P E N D I X



APPENDIX

Opinion Below

I n  t h e

UNITED STATES DISTRICT COURT 
F ob t h e  N o rth ern  D istr ic t  of  A labama 

W ester n  D iv isio n  

Civil Action No. 67-640

M r s . L ouise  T u c k er  B e n n e t t , M r . J am es R obertson , Mr. 
J u l ia n  M ay J a ckson , suing by his mother and next 
friend, Mrs. Corine Jones, each individually and on be­
half of all others similarly situated,

Plaintiffs,
—vs.—

T h e  H onorable D. S. C o t tin g h a m , G eorge E. D a iley , 
Gl e n  T ibbs , L ouie  B oggs, L loyd R ow e , A l ic e  P ratt , 
Clifford  W ard, F reem a n  M u r p h y , Justices of the Peace 
in Bibb County, Alabama; T h e  H onorable H arold 
D a iley , Sheriff of Bibb County, Alabama; T h e  H onor­
able M acD onald G a llio n , Attorney General of the State 
of Alabama; T h e  H onorable G eorge W h it e , County 
Solicitor of Bibb County, Alabama; et al.,

Defendants.



2a

Before G odbold, Circuit Judge, and Grooms and A llgood, 
District Judges.

G rooms, District Judge:
Plaintiffs are Negroes and bring this action on their own 

behalf and on behalf of all other persons similarly situated, 
both as Negroes and as non-resident motorists, pursuant 
to Rule 23 F. R. C. P. The jurisdiction of the Court is 
grounded in Sections 1343 and 2201 of Title 28 U. S. C. The 
suit is filed under Title 42 U. S. C. § 1983 to prevent the 
deprivation under color of State laws of rights, privileges 
and immunities secured by the Constitution of the United 
States, and particularly by the due process and equal 
protection clauses of the Fourteenth Amendment to the 
Constitution.

Plaintiffs challenge the constitutionality of Sections 96 
and 97 of Title 11, Section 418 of Title 13, and Section 53 
of Title 36 of the Code of Alabama, 1940.

Plaintiffs are duly licensed motorists residing outside 
of Bibb County, Alabama. Plaintiff Mrs. Louise Tucker 
Bennett was arrested for speeding on May 21, 1967, and was 
fined by defendant D. S. Cottingham, a Justice of the Peace 
of Beat 4, Bibb County.

Plaintiff Julian May Jackson was arrested for speeding 
on September 8, 1967, and was fined by George E. Dailey, 
Justice of Peace of Bibb County at West Blocton.

Plaintiff James Robertson was arrested on November 12, 
1967, gave bond in the amount of $100.00, and was cited 
to appear before Justice Dailey on November 18, 1967. He 
did not appear; his bond was subject to forfeiture, and he 
was subject to arrest at the time of the institution of this 
action. All of these arrests were made by deputy sheriffs



3a

of Bibb County. Upon the hearing herein eacli plaintiff 
denied that he or she was speeding.

Other than Cottingham and Dailey, Justices of the Peace 
Glen Tibbs, Louie Boggs, Lloyd Rowe, Alice Pratt, Clifford 
Ward and Freeman Murphy are defendants herein. Harold 
Dailey, Sheriff of Bibb County, George White, Solicitor of 
that County, MacDonald Gallion, Attorney General of the 
State of Alabama, L. S. Moore and James Hare, Circuit 
Judges of the Fourth Judicial Circuit, are also parties 
defendant.

Sheriff Dailey has a staff of three full-time deputies and 
one part-time deputy, a bookkeeper and a jailer. Except 
for $50.00 per month which he receives for services ren­
dered respecting elections, he is on a fee basis. If he or 
his deputies make an arrest and the case goes to the Cir­
cuit Court, or is appealed from a Justice of the Peace to 
that court, he is paid the statutory fees (Title 11 § 100) 
whether or not there is a conviction. If a case goes before 
a Justice of the Peace and is there disposed of, he is paid 
the statutory fee only if a conviction is obtained. If there is 
an acquittal he receives no compensation. One-third or 
more of his total fees are received from the various Jus­
tices of the Peace in Bibb County. There are eight Justices 
with like authority in the County, but two or three of these 
try no cases. One appears to act solely as a collector of 
accounts. The sheriff receives no fees on arrest by the 
Alabama Highway Patrol. On a conviction one deputy is 
paid two dollars per case, another one dollar per case over 
100 cases in addition to a salary. Another deputy is com­
pensated on a salary basis.

Defendant George E. Dailey, who is an uncle of Sheriff 
Dailey, has been Justice of the Peace since 1952. He re-



4a

ceives three dollars a case when a party is convicted, but 
receives no fee when there is an acquittal. In October 1967, 
he heard 26 cases, four or five of which resulted in acquit­
tals. In November 1967, he heard 37 cases, 32 or 33 of 
which resulted in convictions. There were no acquittals for 
the violations of the highway laws for those months.

Defendant D. S. (Nottingham assumed office May 2, 1967. 
Since that time there have been 633 convictions for all of­
fenses in his court. Forty cases were nol pressed. If a 
case is not made out, there is a nolle prosequi rather than 
an acquittal. Ninety percent or more of his convictions are 
for violations of the highway laws. During the period of 
his incumbency there have been 61 convictions on arrests 
made by Alabama State Troopers. The troopers are sala­
ried employees of the State and receive no fees.

The evidence establishes the fact that other Justices of 
the Peace in Bibb County who handle cases follow the same 
general procedure as that followed by Cottingham and 
Dailey and receive the same emoluments upon convictions, 
but not upon acquittals.

Cases in the Justices Court of Bibb County have pyra­
mided since 1962. In 1967 there were 2302 cases involving 
motorists, 1739 of which were non-residents of the County. 
A small number only of these were actually tried. A sam­
pling of 529 cases revealed only one trial. Six hundred 
ninety eight Negroes were involved in these cases.

Bibb County is intersected by Alabama Highway 5, and 
U. S. Highways 11 and 82. These are heavily travelled, 
especially on the weekends. Bibb County had a population 
of 14,440 according to the 1960 census. The evidence does 
not disclose whether the arrests or convictions of Negroes 
were out of proportion to the arrests or convictions of 
whites.



5a

Section 53 of Title 36 provides that all fines and for­
feitures collected for violations of the highway laws other 
than those collected in municipalities of more than 2,000 
population shall he forwarded to the State Treasurer and 
credited to the Highway Patrol fund. Under Section 53(1) 
it is provided that where the persons convicted have been 
arrested by the sheriff, or his deputies, or by any other 
county or municipal law enforcement officer, the fines and 
forfeitures collected shall be paid into the fine and forfei­
ture fund of the counties or into the general fund of the 
counties where there are no fine and forfeiture funds. Plain­
tiffs have failed to establish any constitutional invalidity in 
the application of these sections. Certainly no such appears 
from their face.

Section 418 of Title 13 authorizes a Justice of the Peace 
to deduct from fines and forfeitures collected by him the 
amount due for his fees in cases in which the defendant 
was acquitted, a sum not to exceed fifty dollars for any 
calendar month. But as conceded by plaintiffs this section 
has been held not applicable to fines and costs for violations 
of highway laws. Ala. Atty. Gen. Quar. Rep., Jam-Mar. 
1939, p. 63, Oct-Dec. 1939, p. 78. See Hulett v. Julian (M. D. 
Ala.), 250 F. Supp. 208. Only highway violations are here 
involved. Where no right is brought within the actual or 
threatened operation of a statute, consideration of its con­
stitutionality will not be undertaken. United Stales v. 
Harris, 74 S. Ct. 808, 347 IT. S. 612, 98 L. Ed. 989,16 C. J. S. 
Constitutional Law §94, at 313, et. seq. Consequently, the 
Court declines to adjudicate the constitutionality of this 
section.

Section 96 of Title 11 fixes the fees for various services 
of Justices of the Peace. Section 97 provides for their 
taxation as costs and their collection by execution where



6a

no appeal is taken to the circuit court. No provision is 
made for the assessment and collection of costs where there 
is an acquittal or disposition other than on conviction. On 
the contrary it is noted that Section 83(b) provides that:

“ [I]n all trials in the circuit court, or county court, or 
court of like jurisdiction—except justice of peace court 
and courts in lieu of justice of peace courts whose 
jurisdiction in criminal cases is limited to the jurisdic­
tion of justice of peace courts, where the state fails to 
convict, or the indictment abates or is nolle prossed 
or withdrawn and filed, the fees of the sheriffs and 
clerks of the court and the state’s witnesses shall be 
paid out of the fine and forfeiture fund. . . ” (Emphasis 
supplied)

Since no provision of law is made for the payment of the 
fees of Justices of the Peace on charges based upon high­
way violations in the event of an acquittal or nolle prosequi, 
Justices of the Peace must go unremunerated unless they 
convict. The scales of justice are thereby weighted on the 
side of a conviction. Such a situation is interdicted by the 
decision in Turney v. Ohio, 273 U. S. 510, 47 S. Ct. 437, 71 
L. Ed. 749, where it was said:

“ [I]t certainly violates the Fourteenth Amendment, and 
deprives a defendant in a criminal case of due process 
of law, to subject his liberty or property to the judg­
ment of a court the judge of which has a direct, per­
sonal, substantial, pecuniary interest in reaching a con­
clusion against him in his case.

“The Mayor of the Village of North College Hill, 
Ohio, had a direct, personal, pecuniary interest in con-



7a

victing the defendant who came before him for trial, 
in the twelve dollars of costs imposed in his behalf, 
which he would not have received if the defendant had 
been acquitted. This was not exceptional, but was the 
result of the normal operation of the law and the ordi­
nance.”

See Hulett v. Julian, supra, where Turney was applied under 
similar facts to those here involved.

l\To constitutional infirmity appears from the face of 
Sections 96 and 97. However, “a statute not objectionable 
on its face may be adjudged unconstitutional because of 
its effect in operation.” 16 C. J. S. Constitutional Law 
§97, at 353; United States v. National Dairy Corporation, 
372 U. S. 29, 36, 83 S. Ct. 594, 9 L. Ed. 561; and LigUfoot 
v. State, 64 So. 2d 261 (La.). If there was no area in which 
Sections 96 and 97 could have a constitutional application, 
it would follow that these sections would be adjudged un­
constitutional. But presuming, as we must, the constitu­
tionality of Section 418 of Title 13 until there is an ad­
judication of its unconstitutionality, Sections 96 and 97 
could have an area of constitutional application in relation 
to Section 418, which as we have noted is without applica­
tion to cases involving violations of highway laws. With 
respect to cases of alleged violations of the highway laws, 
Sections 96 and 97 cannot be constitutionally applied, for 
in application they give the Justice of the Peace “a direct, 
personal, substantial, pecuniary interest” in convicting the 
defendant.

Plaintiffs ask us to extend the doctrine laid down in 
Tumey v. Ohio, supra, to fees of the sheriff and his depu­
ties. In short they contend that these officers furnish “the 
grist for the mills,” but there is no averment or proof of



8a

conspiracy between these officers and the Justices of the 
Peace or other judicial officers with jurisdiction in Bibb 
County.

A section of the ordinance in Turney provided that de­
tectives and secret service officers should receive compen­
sation for their services in securing evidence necessary to 
secure convictions, in an amount equal to 15% of the fines 
collected. The only reference in the opinion that could 
have application to this provision was the statement of 
the court that:

“It is further said with truth that the legislature of a 
State may, and often ought to, stimulate prosecutions 
for crime by offering to those who shall initiate and 
carry on such prosecutions rewards for thus acting in 
the interest of the State and the people. The legisla­
ture may offer rewards or a percentage of the recovery 
to informers. United States v. Murphy & Morgan, 16 
Pet. 203. It may authorize the employment of detec­
tives.”

We have been cited to no authority that would subject the 
sheriff and his deputies respecting their fees to the doc­
trine of the Turney case. Although the above observation 
by the court does not in terminology include sheriffs and 
their deputies, there is an implication that points in that 
direction. Under the facts of this case we decline to extend 
Tumey to include the sheriff and his deputies.

For the reasons stated in Hulett v. Julian, supra, 28 
U. S. C. A. §2283 does not bar this Court from enjoining 
defendant Justices of the Peace.



9a

A decree will be entered in favor of the plaintiffs and 
all motorists similarly situated and against the defendants, 
who are Justices of the Peace. A dismissal on the merits 
will be entered as to the other defendants.

Done, this the 27th day of June, 1968.

/ s /  J ohn  Godbold 
United States Circuit Judge

/&/ H. H. G r o o m s  

United States District Judge

/&/ C. W . A rlgood

United States District Judge



10a

Judgment Below

I n  t h e

UNITED STATES DISTRICT COURT 

F oe t h e  N o r th er n  D istrict  of A labama 

W ester n  D iv isio n  

Civil Action No. 67-640

[Title omitted]

Pursuant to the opinion filed herein in lieu of formal 
Findings of Fact and Conclusions of Law under Rule 52 
F. R. C. P.;

I t  is  Ordered , adjudged , decreed a n d  declared a s  fo l lo w s :

1. That Sections 96 and 97 of Title 11, Code of Alabama, 
1940 be and the same are hereby held to be unconstitutional 
in their application to fines and costs assessed and taxed 
and forfeitures entered upon charges of alleged violations 
of the highway laws of Alabama.

2. That the defendants, D. S. Cottingham, George E. 
Dailey, Glen Tibbs, Louie Boggs, Lloyd Rowe, Alice Piatt, 
Clifford Ward, and Freeman Murphy, as Justices of the 
Peace in Bibb County, Alabama, their successors in office, 
their agents, servants, employees and attorneys, and those 
persons in active concert or participation with them, be 
and each of them is hereby enjoined from trying (which 
includes accepting pleas of guilty or forfeitures of appear­
ance or other bonds) any cases, future or pending, of 
alleged violations of the highway laws of Alabama.



11a

3. That this action as to the defendants, Harold Dailey, 
Sheriff of Bibb County, Alabama; MacDonald Gallion, At­
torney General of Alabama; George White, County Solici­
tor of Bibb County, Alabama; L. S. Moore and James Hare, 
Judges of the Fourth Judicial Circuit of Alabama, be and 
the same is hereby dismissed on the merits.

4. That costs of this action are taxed against the defen­
dants named in paragraph 2 hereof.

Done, this the 27th day of June, 1968.

/ s /  J o h n  G odbold 
United States Circuit Judge

/ s /  H. H. Grooms 
United States District Judge

/ s /  C. W. A llgood 
United States District Judge



RECORD PRESS — N. Y, C. 38