Nelson v. Sneed

• Decision Date: 19 December 1904
• Citation: 83 S.W. 786,112 Tenn. 36
• Parties: NELSON v. SNEED.
• Court: Tennessee Supreme Court

83 S.W. 786

112 Tenn. 36

NELSON v. SNEED.

Supreme Court of Tennessee.

December 19, 1904

Appeal from Chancery Court, Knox County; W. L. Welcker, Special Chancellor.

Bill in equity to contest an election by Thomas A. R. Nelson against Joseph W. Sneed. From a decree sustaining a demurrer to the bill, the contestant appeals. Affirmed.

Webb McClung & Baker, H. H. Taylor, J. H. Welcker, H. H Ingersoll, and G. W. Pickle, for appellant.

Horace Vandeventer, J. W. Caldwell, Sam. G. Shields, Chas. T. Cates Jr., Templeton & Templeton, and W. S. Roberts, for appellee.

SHIELDS J.

This proceeding is brought by contestant, Thomas A. R. Nelson under sections 1320-1326, inclusive, of the Code (Shannon's Ed.), against Joseph W. Sneed, to contest his election to the office of circuit judge of Knox county, Tenn.

The contestant has presented his grounds of contest in the form of a bill in equity--a practice to be commended, as tending to secure a clear and orderly statement of the facts upon which relief is sought.

The chancellor sustained a demurrer to the bill, and the case is before us upon the appeal of the contestant.

The bill and the assignment of errors are voluminous, each containing more than 60 pages of typewritten matter, and we can only state the material charges and statements necessary for the present hearing of the case.

Contestant charges in his bill that he and contestee were opposing candidates for the office of circuit judge of Knox county at the general election held in August, 1902, and that on the face of the returns the contestee, Sneed, had an apparent majority of 1,261 votes, but that in fact he received a fair majority of the votes cast in said election, and was duly elected to said office, and that the returns to the contrary are false, and were effected and procured by fraud and corrupt and illegal methods and practices employed by officers of the election, and other friends, supporters, and agents of the contestee, in the conduct of the election, in the 1st, 3d, 5th, 6th, 7th, 9th, and 11th Wards of the City of Knoxville, and the 10th, 17th, and 18th Civil Districts of Knox county, which render the election in these wards and districts incurably uncertain and void, and that the returns thereof should be cast out and disregarded; that no election was held in the 9th District and one precinct of the 17th District of the county.

The number of votes cast in each ward of the city and civil district of the county for contestant and contestee, respectively, is set out in full, from which it appears that, in the several wards and civil districts which contestant seeks to have rejected and cast out, contestee, Sneed, received 2,300 majority, and that, in the wards and districts not attacked, contestant, Nelson, received over 1,000 majority, and that the entire vote cast in this election was 9,489.

There are general charges of frauds and corrupt practices which apply to all the wards and districts attacked, and special charges applicable to each of them; but there is no definite statement of the number of illegal votes of any class claimed to have been cast and counted for contestee, or of the legal votes of which contestant was deprived. The only charge approaching a specific statement of the number of legal votes of which contestant claims to have been deprived is that voters residing in each of the wards and districts, largely in excess of the votes which the returns therefrom show that contestant received therein, had made affidavits stating that they had voted for contestant; but the aggregate of the voters making these affidavits falls far short of a number sufficient to change the result of the election, shown by the returns made by the election officers and canvassed by the election commissioners. It is also apparent from the face of the bill that if the returns should be corrected so as to deduct from them all the illegal votes charged to have been counted for contestee, and to give contestant the legal votes of which he claims to have been deprived, contestee would still have a majority and be elected.

Contestant's statement of his grounds of contest in his assignment of errors, so far as is material, is substantially as follows:

"This proceeding is a contest over the office of circuit judge of Knox county, Tennessee, instituted before the chancellor of the division, as provided by statute.

The contestant, Nelson, and contestee, Sneed, were opposing candidates for said office at the August general election, 1902. On the face of the returns, the contestee, Sneed, had an apparent majority of 1,261 votes. The contestant avers that this apparent result is false, and the result of fraud and irregularities in said election, and that he in fact received a majority of the legal votes cast in said election.

The bill or petition attacks the returns of certain specific wards and districts, to wit, the 1st, 3d, 5th, 6th, 7th, 9th, and 11th Wards of the city of Knoxville, and the 10th, 17th, and 18th Civil Districts of Knox county. The other wards and districts of the city and county are not attacked.

The object of the bill or petition is to cast out, as being utterly infected with fraud and illegalities, the returns of the wards and districts attacked.

In the wards and districts attacked, the contestee received, on the face of the returns, over 2,300 majority; and hence, when all of said wards are thrown out, and only the votes of the wards and districts counted in which an honest election is admitted to have been held, there would be a majority of over 1,000 in favor of the contestant.

As indicating the fraudulent character of the votes in said wards and districts, it is averred that in each of them the contestant received largely more votes than were counted or credited to him by the returns, and that, upon a fair and honest count of the legal votes as cast in all the districts of said county, he had a clear majority.

The contestant charges that many forms of fraud and misconduct were resorted to in said wards and districts, and sets the same out in these words:

These forms of frauds may be stated, in a general way, as stuffing ballot boxes, padding returns, miscalling names of candidates on the ballots, by officers of election, bribery of voters, voting without poll-tax receipts or having paid poll tax, upon bogus poll-tax receipts, voting ballots that were not furnished by the proper officer, but fraudulently furnished to voters by outsiders, voting by repeaters and persons who did not reside in the ward and district in which they voted, voting by unregistered persons, or by persons holding illegal registration receipts or certificates, entering the names of absent voters on the poll lists and counting them, counting ballots that were illegally marked by the officer or falsely marked by him, counting ballots that were illegally marked by persons other than the officer of election, or for persons who were not disabled by blindness or other physical disability, by fraudulent substitution of ballots, by receiving open ballots and counting same, by intimidation of voters, by failure to furnish sufficient booths for the accommodation of voters, thereby preventing them from casting their ballots, insufficient and unsuitable places for the holding of said election, by the holding of election by judges, clerks, officers, etc., who were not sworn according to law, by permitting votes to be cast by persons who were not registered by duly sworn officers, by the exclusion of voters and citizens from seeing the voting and count of the ballots after the polls closed, by fraudulently preventing voters favorable to contestant and his associates on the Republican ticket from obtaining poll-tax receipts, and by the rejection of votes that were offered by qualified voters, and by other illegal practices and methods.

He avers that said illegal and fraudulent methods and practices were adopted for and on behalf of the contestee, and that they inured to his benefit, and operated greatly to the prejudice of the contestant, and that the result of the election was thus illegally and fraudulently changed.

In addition to this averment, which is sufficiently specific for the purpose of this proceeding, which is not a proceeding to expurgate the returns and eliminate certain ballots, but to throw out, as utterly infected with fraud, the entire returns of wards and districts, the contestant undertook, so far as the same was possible, to set out specifically, under each ward and district, such acts of fraud and illegality as he was able to discover within the short time after this election allowed for filing his statement or petition.

It is averred that practically all of the safeguards thrown around elections and the ballot box were disregarded by the commissioners of registration in the matter of the registration of voters, and in the appointment of officers and furnishing places for voting on the day of election, as well as by the officers who held the election."

The prayer of contestant's bill is as follows:

"That the contestee, Jos. W. Sneed, be made a party hereto by proper process, and be required to answer this bill fully and truly, but not upon oath; his answer upon oath being expressly waived. He prays that said wards and districts herein specifically attacked be thrown out, and that the result of said election be ascertained, upon the legal votes cast, and that he be declared elected to said office. He also prays for general relief."

The demurrer may be considered as a whole. The material question presented is that the bill shows upon its face that the entire election for circuit judge of Knox county was absolutely void, and therefore contestant was not legally elected, and is not entitled...