Barham v. Denison

• Decision Date: 27 May 1929
• Parties: BARHAM v. DENISON.
• Court: Tennessee Supreme Court

17 S.W.2d 692

159 Tenn. 226

BARHAM v. DENISON.

Supreme Court of Tennessee.

May 27, 1929

Appeal from Chancery Court, Henderson County; Tom C. Rye Chancellor.

Proceedings by N. R. Barham against W. H. Denison to contest an election. From a decree dismissing the petition, petitioner appeals. Affirmed.

C. W Hewgley and R. R. Sneed, both of Jackson, for appellant.

J. C R. McCall, of Huntingdon, and W. H. Lancaster, of Lexington, for appellee.

COOK J.

Upon the face of the returns, the defendant, W. H. Denison, was elected judge of the Twelfth judicial circuit by a majority of 38 votes. Judge N. R. Barham, by petition duly filed with the chancellor, contested the election. The chancellor sustained the defendant's demurrer and dismissed the petition.

On appeal the questions raised by the demurrer were disposed of in memorandum opinion filed, affirming the decree of the chancellor in part, but as therein stated the cause was remanded for answer and proof upon charges of illegality and fraud affecting the result in Henderson county; the petition being held sufficient to require answer and proof upon the following charges:

First. That three or four ballots were carried from the polling place at Darden and an indefinite number at Blackwell, which were marked and returned by a messenger, who was permitted to deposit them in the ballot box in the name of the persons purporting to vote.

Second. That 15 or 20 voters were illegally aided in marking their ballots at Alberton precinct.

Third. That 50 to 150 voters were bribed at the two precincts in Lexington.

Fourth. That 730 in the seven districts of Henderson county, subject to payment of poll tax, illegally voted without a tax receipt obtained upon payment of the tax more than 60 days before the election.

Referring to the four subjects of inquiry, it was said in the opinion in substance, and specifically in the response to the petition to rehear: "The bill sets forth facts and makes charges of illegal votes cast and counted at particular precincts, and it was alleged that with the returns purged of these illegal votes the petitioner was elected. These charges we deemed sufficient to require answer and proof with a view of purging the returns of the alleged illegal votes."

The fact that the charges, some not sufficiently specific, involved a judicial office and might reflect upon the integrity of the incumbent, justified the remand for answer and proof, although the petition afforded no definite objective as to some of the four subjects of inquiry. We were not unmindful that an election contest is a judicial proceeding controlled by the usual rules of practice and procedure and that the petition should present more than mere charges of fraud and irregularity in the election as the basis for a judicial investigation beyond the election returns. Specifications are necessary in such cases to avoid indefinite and indeterminable inquiry. Blackburn v. Vick, 2 Heisk. 377; Crockett v. McLanahan, 109 Tenn. 517, 72 S.W. 950, 61 L. R. A. 914; Nelson v. Sneed, 112 Tenn. 36, 83 S.W. 786; Maloney v. Collier, 112 Tenn. 78, 83 S.W. 667; Red River Furnace Co. v. Tennessee Central R. Co., 113 Tenn. 697, 87 S.W. 1016; Potter v. Robbins, 155 Tenn. 6, 290 S.W. 396.

The cause is before us to review the action of the chancellor under the petition and answer upon the proof adduced. Questions of practice and procedure in perfecting the appeal raised by counsel for the defendant are passed until the propositions presented by complainant's assignments of error have been disposed of.

It is insisted by the complainant that the chancellor erred in refusing to declare the election in Henderson county void in its entirety, and at least in not declaring the election void at Lexington, Darden, Blackwell, and Alberton precincts because the returns were so tainted with fraud and illegality as to destroy their value as prima facie evidence of the result. The legality of a majority of the votes cast in Henderson county and in the particular precincts was not questioned by the petition and was not shown by the proof. To annul the election in Henderson county, or at the challenged precincts, would affect such a proportion of the unchallenged and legal ballots cast as to render the election void throughout the circuit. Barry v. Lauck, 5 Cold. 588.

It was determined on the former appeal that the specifications in the petition were not sufficient to authorize the annulment of the election, and that from the allegations of the petition an inquiry would discover the illegal votes alleged to have been cast and counted for the defendant, and the inquiry on the remand was so limited. Assignments of error to the action of the chancellor in refusing to declare the election void in Henderson county, or in the precincts referred to, are without merit.

The duty to arrange election booths and afford secrecy in marking ballots is imposed by law upon the election officers. They may be compelled, in appropriate proceedings, to observe that duty, but misconduct or irregularity on their part in providing facilities for the voters will not justify the rejection of returns at precincts where misconduct and irregularity of the election officers occurred, in the absence of a showing that such irregularity prevented a fair expression of the will of those whose ballots were received and counted. Browning v. Gray, 137 Tenn. 70, 191 S.W. 525.

The chancellor committed no error in refusing to exclude the returns at Blackwell and Alberton precincts because of the failure of the election officers to comply with the election laws in providing adequate booths for the voters. The officers of the election testify that the election was held according to previous custom, that they were provided no means for use in constructing formal booths, and the proof does not indicate that they were called upon before or at the election to do so; and the proof does not indicate that the voters or any of them were deprived of the free and fair expression of their will at the ballot box as arranged for them by the authorities.

The petition indicated that illegal votes alleged to have been cast and counted for the defendant could be ascertained by proof, and the cause was remanded to enable their discovery and exclusion from the returns, and the burden was upon complainant to show the illegal votes; and that rule applies, whether the alleged illegality was produced by bribery or otherwise. The petitioner is making a collateral attack upon the result certified by the election officers. Their returns are conclusive of the result until overcome by evidence. Red River Furnace Co. v. Tennessee Cent. R. Co., 113 Tenn. 697, 87 S.W. 1016; Morrison v. Buttram, 154 Tenn. 683, 290 S.W. 399; 20 C.J. p. 238, §§ 322-324.

"Fraud or bribery in an election must be established by direct proof or by circumstances from which the inference of fraud or bribery naturally follows, and facts creating only suspicion or mere conjecture are not sufficient. So evidence which merely tends strongly to suspicion that certain votes were illegally cast is not sufficient to throw out the ballots, and clear evidence must be furnished as to how an illegal voter cast his ballot before his vote can be deducted." 20 C.J. p. 248, § 342; Scholl v. Bell, 125 Ky. 750, 102 S.W. 248; Edwards v. Logan, 114 Ky. 312, 70 S.W. 852, 75 S.W. 257.

According to these authorities, which do no more than observe ordinary rules of logic and reasoning, where illegal votes are proven it must be shown by direct or circumstantial evidence that such votes were in fact cast and counted for the contestee before they can be stricken from the results certified by the election officers (Scholl v. Bell, supra; Edwards v. Logan, supra), for the voter in marking his ballot may not have voted for either candidate for circuit judge or may have voted for the contestant.

Upon issues raised by the petition and answer upon the four subjects of inquiry for which the cause was remanded, 160 or more witnesses were examined orally before the chancellor. N. R. Oakley and Will Asbill testified that they assembled negro voters in a vacant picture show house at Lexington on the afternoon of the election, instructed them how to vote, and paid them money for voting. There is no evidence to show how all of these voted. There were only 89 negro men voters in the two precincts at Lexington. Oakley and Asbill indicated 40 of them as coming to the show house and receiving money. Thirty-four of those indicated were introduced and testified that they voted for the candidate of their choice for circuit judge without interference from any one.

A salient fact developed by the testimony of Oakley and Asbill is that they were working in the interest of Democratic candidates for county office and were interested in local candidates primarily. Oakley, a Democrat, says he was...