71 Tenn. 174 | Tenn. | 1879
delivered the opinion of the Court.
At the election held in James county on the 1st of August, 1878, Lewis and Watkins were the contesting candidates for sheriff, and Lewis received the certificate of election on a majority of five votes. On the 5th of the same month, Watkins gave Lewis notice in writing, that at the next term of the Circuit Court, commencing in September, he would contest his election on certain grounds mentioned, being grounds upon which Watkins claimed that he was the successful candidate. At the September term, both parties
The plaintiff amended his declaration so as to state the facts with sufficient particularity; one count, as before, being based upon grounds which, if true, would show that the contestant, except for the intimidation exercised on the voters at one precinct whereby six votes were lost to him, and the opening of the polls at another precinct after they had been closed according to law, whereby at least five votes had been ille-
There is no ground for disturbing the findings of the Circuit Court on the facts, and the errors relied on for reversal go back to- the rulings of his Honor on the demurrer to the declaration, and the demurrer to the pleas. There is a further assignment of error, in the event the judgment should be in other respects affirmed, on the matter of costs.
Title 6 of Part 1 of the Code, section 748, et seq.f treats of Officers and Elections. Chapter 3, under this title, commencing with section 888, treats of contested elections, and article 1 of that chapter, of the jurisdiction of contested elections. By section 889, it is provided: “ The Circuit Court hears and determines all contests of the election of sheriff.” Article 4 of the same chapter, treats of the “ Judgment on contested election cases, and the effect thereof.” By section 907, the first section of this article, it is provided t “After hearing the allegations and proof, the Court shall give judgment either confirming or annulling such election altogether, or declaring some other person than the one whose election is contested, duly elected.”' By section 912, the last of this article, it is provided: “When the person whose election is contested is found to have received the highest number of legal votes,, but the election is declared null by reason of constitutional disqualifications on his part, or for other causes, the person receiving the next highest number of votes cannot be declared elected, but the election shall be declared void, and so certified to the power authorized to fill the vacancy, or order a new election.”
In Boring v. Griffith, 1 Heis., 456, which was a contest over the office of sheriff, the proceedings were
In Blackburn v. Vick, 2 Heis., 377, the contest was over the office of revenue collector, which was commenced before, and continued after the induction of the successful incumbent into office.
The Constitution of 1870, art. 2, sec. 25, says: “No person who may be a collector or holder of public moneys, shall hold any office under the State government until such person shall have accounted for and paid into the treasury all sums for which he may be accountable or liable.” And by the Code, section 748, sub-sec. 4, those who are defaulters at the time of the election are ineligible, “and the election of any such person shall be void.” In Newman v. Justices, 6 Hum., 41, the provision of the Code, which was taken from the act of 1844, ch. 196, sec. 2, was considered. There, Newman was elected sheriff of Jefferson county, and, as such, collected State and county taxes, which he failed to pay over. Having been re-elected sheriff, he was inducted into office by the County Court. But at a subsequent term of the same court during the year, upon the production of the record of a judgment against him, showing him to have been a defaulter at the time of the election, the County Court declared the office vacant, and proceeded to elect a sheriff pro tem. . This action of the County Court was sustained upon appeal, first by the Circuit Court, and then by this court. After quoting the language of the statute, which, like the Code, declares
In Pucket v. Bean, 11 Heis., 600, Bean, having received a certificate of election to the office^of sheriff, applied to the County Judge to induct him into office, which he refused to do upon the ground that the applicant was a defaulter. Upon petition by Bean for a writ of mandamus to compel the County Court to induct him, the County Judge replied that Bean had been tax collector, and as such was a defaulter to the ■State, county, and public schools. Upon the trial, the petitioner was shown to be a defaulter, and thereupon his petition was dismissed, and, upon appeal to this •court the judgment was affirmed. The court held, Judge Turney delivering the ' opinion, that the question raised by the answer might be tried as a fact without :any judgment of previous conviction for the default, and the election of a defaulter was void.
It will be seen from the review of the authorities, that the right of the contestant, whether one of the candidates or an independent citizen, or, as in the last •case, a public officer, to show that the defendant having a certificate of election is a defaulter, and, as such, that the election is void, and may be so adjudged, is •conceded wherever the contest has been over the induction* of thé defendant into office. This case was.
But it is very clear that the cause of action which rests upon the plaintiff’s title to office, is altogether different from the cause of action which rests solely on the disqualification of the defendant. If the contestant choose to unite them in the same suit, he must take the consequence which follows at law the uniting in one declaration of several independent causes of ac
The judgment of the Circuit Judge will; be affirmed so far as it adjudges that the plaintiff in error was-ineligible to the office of sheriff by reason of his being a defaulter to the public treasury as tax collector on-the day of the election, and the judgment will be-certified to the County Court. But the judgment as to the costs will be reversed, and judgment entered here against Watkins for the costs of the court below arising under the first count of his declaration,, and against Lewis for the residue of the costs below,, and for the costs of this court.