Barry v. Lauck

• Decision Date: 31 December 1868
• Citation: 45 Tenn. 588
• Parties: Thomas Barry v. L. F. Lauck.
• Court: Tennessee Supreme Court

45 Tenn. 588

Thomas Barry

v.L. F. Lauck.

Supreme Court of Tennessee.

December Term, 1868.

FROM SUMNER.

This cause was heard by Chancellor JOHN P. STEELE, of the Third Division, at a Special Term, in July, 1868, who pronounced a decree in the cause; from which James F. Lauck, appealed.

J. J. TURNER, JO. C. GUILD, BAXTER SMIT,H and J. W. HEAD, for Barry.

EDWARD H. EAST, JOHN SPURLOCK and R. MCPHAIL SMITH, for Lauck

This is a petition in Chancery, filed under the provisions of sec. 900, of the Code, for the purpose of testing the validity of an election held in the Seventh Chancery Division of this State, and under which the defendant, Lauck, claims to have been elected to the office of Chan cellor of said Division.

The petitioner, Barry, was appointed by the Governor of this State, to fill a vacancy existing in the office of Chancellor of that Division, until his successor should be chosen and qualified--his commission taking effect on the 11th day of September, 1865. On the 21st of February, 1868, the Governor issued his proclamation, ordering an election to be held in said Division, on the 28th of March, 1868, to fill said vacancy, and is sued writs of election to the Sheriffs of the six counties constituting the Division.

The election was held at the time fixed, and on the 8th of April, 1868, the Governor issued a commission to the defendant, as Chancellor of said Division, reciting that he was duly elected to the office. This petition was filed, April 3, 1868, and notice of the contest given to the Governor before the issuance of the commission to Lauck.

Both Barry and Lauck were candidates, running and voted for at this election; but the petition is filed for the purpose of setting the election aside altogether, and not for the purpose of establishing that Barry was elected; he insisting by his petition, that, by virtue of his appointment and commission, he is entitled to hold the office for the full constitutional term of eight years, and claiming that the election was void, as well because no vacancy existed which an election could be ordered to fill, as because of numerous errors and irregularities in the conduct of the election proceedings.

The prayer of the petition is, that the election be declared void, for the reasons therein set forth. No objection has been taken to the right of Barry to file a bill of this nature.

The position assumed by Barry, that by virtue of his commission from Governor Brownlow, he is entitled to his office for the full constitutional term of eight years, can not be sustained. He must be considered as merely filling the vacancy to which he was appointed, until the election of his successor; and the election might lawfully be ordered to fill the vacancy: Code, sec. 315.

Many questions are raised in argument, which we do not deem it necessary to decide.

The Seventh Chancery Division, in which this contest arose, is composed of six counties, embracing within their limits, ninety-four civil districts, in each of which civil districts, the law requires a poll to be opened whenever an election occurs embracing the county.

The Code requires the Sheriff of each county to give notice of the time, place and object of each special election ordered, by publication in some newspaper in the county, if there be one, and if not, then by notice at the court-house door and at each voting place in his county. It does not appear that there was any failure to give this notice, except on the part of the Sheriff of Macon County, who posted a notice at the door of the court-house, but at no other place in the county, and made no publication in any newspaper. No reason appears for the omission.

We make no decision as to the necessity of new notices by the Commissioners of Registration, in lieu of those already made by the Sheriffs, upon the passage of the law which transferred the authority to hold the elections, from the Sheriffs to the Commissioners, after notices had been given; it not being material to a decision of the case.

The County of Macon contains twelve civil districts and voting places, and 837 registered voters. The polls were actually opened, and elections held at nine of these voting places, Barry receiving thereat, 78, and Lauck, 804 ballots.

The five counties in the Chancery Division, besides Macon, contain 82 civil districts, and in 31 of these, no polls were opened. In regard to some of these districts, the failure appears to have been in consequence of a sufficient number of voters not attending to open the polls; in others, because no Judges or Clerks were appointed to hold the election; in others, because the persons appointed as Judges and Clerks neglected or refused to act; and as to others still, no reason appears. In many of the districts where the polls were opened, the law was disregarded as to the hours of opening and closing. We are not prepared to say that actual fraud is proved, but there is much reason to suspect that the failure to hold the election in some of these districts was the result of a fraudulent intention on the part of local officers or appointees, to prevent an election at particular localities. But, however this may be, in the proceedings throughout the Chancery Division, there is apparent, an astonishing degree of carelessness, inefficiency, indifference to duty, and failure to perform it, on the part of the officers whose duty it was to give notice of, and superintend the election, with the natural effect of great irregularity and confusion in the proceedings, and uncertainty as to the result.

The number of registered voters in the entire Chancery Division was 8,253. The total number of ballots cast in all the districts voting, was 3,455, of which a majority of 375 were given for Lauck.

Great confusion resulted in consequence of the enactment of the Legislature, after this election had been ordered, and notices published, of a lawrequiring all elections to be held by the Commissioners of Registration, instead of by the Sheriffs as theretofore. This statute came to the knowledge of the several county officers, at a late day, and in consequence, the elections at some points, were held by the Sheriffs and their deputies and at others, by the Commissioners and their appointees; and in some instances both took part. The Sheriffs had no legal authority to hold the elections after the passage of that Act.

In determining what circumstances of official omission or misconduct will avoid an election, the object to be attained by an election must be...