349 S.W.2d 140 | Tenn. | 1961
Lead Opinion
delivered the opinion of the Court.
This is an election contest by Austin P. McClary, hereinafter referred to as contestant, against Buford Dixon, hereinafter, in order to avoid confusion, referred to as appellant, as a result of the General Election held in Polk County on August 4, 1960, as a result of which according to the official returns, Dixon was elected Sheriff.
August 8, 1960, McClary filed his petition for contest against appellant Dixon, the three election commissioners and the election officials of the 8th Precinct, sometimes referred to as the Turtletown Precinct, located in the 3rd Civil District of Polk County. He alleged that he was the qualified candidate of the Democratic Party for the office of Sheriff and that appellant was the qualified candidate of the so-called Good Government League or Republican Party of the County. The complaint is as to what occurred only in said 8th Precinct.
The substance of the petition is that the election proceeded in an orderly and regular manner until the closing hour at 4:00 p. m. and that after the polls were closed the officials began to count the 253 absentee ballots that had been brought in by the election commissioners. One Ernest Carruth, a watcher for the Good Government League, became dissatisfied with the rulings of the judges on some of the first few absentee ballots that were allowed by the officials, as a result of which he went outside and
The petition further alleged that outside of this precinct appellant received 2,373 votes whereas contestant received 2,285, that in this precinct appellant received 295 while contestant received 327, but if a remaining 98 absentee ballots, which had not been oast because of threats of bodily injury or more serious harm to the officials had not been cast, should be cast that the contestant would be the elected Sheriff.
Pursuant to proper prayers the ballot box was removed under guard from the office of the election commissioners of Polk County in the Courthouse at Benton, Tennessee, and taken to Cleveland, Tennessee, and there stored in the bank vault under lock and key and seal.
Omitting for the present certain pleas and demurrers, the appellant filed an answer in which he stated that by reason of certain alleged irregularities and failure to comply with the election laws that said election was conducted illegally, was invalid and void and should be disregarded in computing the votes cast in the Polk County General Election.
Then in the alternative, it was stated that if on the other hand the court should find that the election was legal in said precinct and was able to purge the alleged illegal votes from said returns that the court determine by any proper method other than having the former election officials count the vote determine how many legal votes were cast in said election.
Upon the threshold of the taking of testimony the trial court ruled that the only material question under the
Proof was taken and we have examined the same and it clearly establishes the allegations of the contestant’s petition as to the threats of bodily harm and the resulting duress under which the officials acted in certifying the election without counting certain absentee ballots. The court then ordered the ballot box brought into court under proper safeguard, the same was opened and the absentee ballots were examined with the attorneys for each side sitting beside the judge and with full opportunity for observation of the entire procedure and the right to challenge votes. Out of 99 votes the court determined that there were 70 absentee ballots that should be counted. The court counted 67 for the contestant which added to those received from the other precincts gives the contestant a total of 2,679 and the appellant a total of 2,671 and hence the contestant was declared elected Sheriff.
The first assignment of error complains of the holding of the Circuit Court of Polk County sitting at Benton that it had jurisdiction to try this cause. It is insisted that under Ch. 413, Private Acts of 1911, the Law Court of Duektown had exclusive jurisdiction to try this
The second assignment of error complains of the trial court’s overruling appellant’s motion to dismiss the petition for contest on the ground that the petition was indefinite and void as a result of petitioner’s failure to name the voters whose absentee ballots were not cast. The trial court held it was utterly impossible for petitioner to malee any such allegation at the time of the filing of the petition. This is obviously correct by reason of the alleged and proved facts that the unvoted absentee ballots were placed in the ballot box when the acts of violence occurred and were locked up and sealed and put in the vault of the election commissioners in Benton for safekeeping. Contestant had no way to gain access. The assignment is overruled.
Assignments of error 3, 6, 7, 8, 12, 13, 18 and 19 and the arguments made in support thereof all depend upon the insistence by appellant that he was entitled to show that the election was void and invalid because of various irregularities and it is insisted that the court committed error when it struck all of the appellant’s answer which was directed at showing said election to be void.
We think the court was not in error in so ruling. The appellant was a candidate for election to this office, was not a holdover candidate, and received his certificate of election on the strength of the validity of the returns and has been inducted into and is holding office on the strength of the validity of the returns so certified. Accordingly,
It is established by Nelson v. Sneed. 112 Tenn. 36, 83 S.W. 786, and Mathis v. Young, 200 Tenn. 168, 291 S.W.2d 592, that a contestant cannot stand on such an inconsistent position and we think the same rule applies to a con-testee.
The objective of appellant in assuming this position is to have the election in this precinct declared void, regardless of the substantial number of votes which were cast therein and of such effect as the discarding of all of these votes might have on the total vote of the county, in order that he might maintain the majority which he has ostensibly received in the precincts outside this Turtletown or 8th precinct.
For the foregoing reasons, all of those assignments are overruled.
The 4th assignment is that the proof fails to sustain the contestant’s averment that Ernest Carruth drew his pistol and made threats or that anyone else was armed except a duly qualified deputy sheriff. Assignment 5 says there is no material evidence to support the judgment and assignment 21 asserts that the judgment is contrary to the weight of the evidence.
We find no merit in any of these three assignments and the same are overruled.
Assignment 9 asserts that the court erred in failing to require the contestant to carry the burden of proof as to
Assignment 10 asserts that the court erred in finding that the ballot box from the precinct in question had been kept in such custody that it could not have been tampered with. The evidence in support of the trial court’s ruling is overwhelming. The assignment is overruled.
The 11th assignment alleges error in the ruling of the court that the returns certified by the election officials of the said precinct were incomplete because of the duress exerted against the officials. Obviously, this assignment is without merit under the evidence of the case. Overruled.
Assignment 14 asserts that the trial court erroneously counted absentee ballots contained in individual envelopes bearing registration Nos. 187, 82, 104, 84 and 150.
Although the court held that none of these ballots had been cast, yet when he checked the signatures on the affidavits on each of the individual envelopes against the signatures contained in the registration book he rejected 187, 104 and 150 and actually counted only 82 and 84. He counted these last two numbers, although when he opened the ballot box in open court he found that those two envelopes had been opened, because those two ballots still had the numbers affixed to them. The court held that those two ballots had not been previously counted by the election officials because when they were counted the law requires the election officials to remove the num-
It is further insisted that even if said last two numbered ballots had not been cast by the election officials they may have been among those that had been challenged and rejected by the election officials. However, as heretofore noted, the word “void” was marked on not only these two but on 90 odd other individual ballot envelopes which had not been opened, this having been done by Carmel Gibson, one of the watchers for the Good Government League, who at first asked the judges to mark all of those ballots void and when they refused to do so, he did the marking himself. So these two were among those that were not voted because of the violence. The assignment is accordingly overruled.
Assignment 15 complains of the counting by the court of the ballot contained in envelope bearing No. 134 on the ground that the signature of the voter was printed on the registration card and written on the affidavit on the back of the envelope.
The court made a careful determination of all of these objections to different ballots including this one and threw out some and included others. Unless the evidence preponderates against the correctness of his judgment, which it does not, his findings are presumed to be correct and there is nothing that the appellate court can do about it under T.C.A. sec. 27-304. The assignment is overruled.
No. 17 objects to the counting of several ballots which were marked “by the same pencil and the same character”. The suggestion may not be amiss that any but an expert perhaps who can tell whether the same pencil is used in a number of instances is bordering on genius. We think the evidence does not preponderate against the correctness of the findings of the trial judge. The assignment is overruled.
The last assignment undisposed of is No. 20. The complaint there is that the court did not follow the part of T.C.A. sec. 2-1609 which provides “* * *, and the envelope shall then be opened and the folded ballot taken therefrom, the number torn off and the ballot deposited in the regular ballot box without being examined or unfolded, and the same shall be counted the same as if the voter had appeared and cast his or her ballot in person; * *
It is insisted that the court in counting the 70 absentee ballots as being valid and entitled to be voted deprived the respective voters of the right to a secret ballot as provided by the statutes.
The court was of opinion that this was the only method by which he could cast and count the ballots and still preserve the record for an appellate court. Otherwise, if the court had removed the ballots from the individual envelopes and thereafter had kept all such ballots separated from the envelopes from which they had been removed, and if later during the trial, or on consideration of a motion for a new trial, or on appeal, the question had been raised concerning a particular ballot, there would have been no way for either the trial court or the appellate court to have rejected that particular ballot.
While it is true that the trial judge and others participating in the count, as heretofore mentioned, knew for whom each vote was cast, still we think (1) that this is the only rational way that this could have been handled and (2) no voter is complaining of such action and it
We think the trial court used every reasonable precaution to see that this election was completed which had been interrupted by violence, and that a fair casting of the absentee ballots was made.
All assignments are overruled and the judgment below is affirmed with costs.
Rehearing
On Petition to Rehear
The petition to rehear filed in behalf of Buford (Dick) Dixon is a reargument of matters already considered and disposed of in the original opinion.
The same is respectfully overruled.