Bowling v. Carnahan
| Decision Date | 16 January 1937 |
| Parties | BOWLING v. CARNAHAN. |
| Court | Tennessee Supreme Court |
Error to Rutherford County Court; John D. Wiseman, Judge.
Suit by J. W. Bowling, as a citizen and taxpayer of Rutherford County, to restrain A. L. Carnahan from being inducted into the office of justice of the peace, and to nullify the certificate of election issued to defendant by the election commissioners. To review a judgment dismissing the petition petitioner brings error.
Affirmed.
Alfred B. Huddleston, of Murfreesboro, for plaintiff in error.
C. C Jackson, of Murfreesboro, for defendant in error.
This suit was brought by J. W. Bowling, a citizen and taxpayer of Rutherford county, to restrain defendant A. L. Carnahan from being inducted into the office of justice of the peace of the Thirteenth civil district of Rutherford county and to have the action of the election commissioners, who had issued a certificate of election to said Carnahan to said office declared illegal and void. The suit was brought in the county court of Rutherford county, answer was filed, and on the hearing the county judge dismissed the petition. From this judgment, Bowling appealed to this court.
The facts are not in dispute. At the August, 1936, election there were five candidates for justice of the peace in the Thirteenth civil district of Rutherford county. This district included the city of Murfreesboro and was entitled to threemagistrates.
One Vaughan received 1,009 votes, Brown received 674 votes, Carnahan and Smoterman each received 642 votes, and petitioner Bowling received 637 votes. Vaughan and Brown accordingly were elected without question. For the third place Carnahan and Smotherman tied. Petitioner received the lowest number of votes.
The election commissioners undertook to break the tie between Carnahan and Smotherman and issued a certificate of election to Carnahan.
The action of the commissioners of election was taken under authority of section 2097 of the Code, as follows:
"If there is a tie vote between two or more persons having the highest number of votes for the same office, in all cases where the office is filled by the votes of a single county or a single civil district, the commissioners of elections shall give the casting vote between such persons.'
The contentions of the petitioner are two: First, that section 2097 is not applicable to elections for justices of the peace. Second, that, if said section applies to elections of justices of the peace, it is unconstitutional.
The first contention is based on the proposition that a justice of the peace is a judicial officer and that, when there is a tie vote in an election for such office, section 2106 of the Code applies, as follows:
"If there is a tie vote between two or more having the highest number of votes for any congressional district, the governor will give the casting vote; for any judicial officer or district attorney, the election shall be declared null, and a new election forthwith ordered.'
Chapter 2 of the Acts of 1835-36 provides, among other things, for he the election of county officers. Section 6 of this act is as follows:
The history of section 2097 of the Code, first above quoted, in our opinion very plainly shows that it was intended to apply to elections for justices of the peace.
"That in all cases where it shall so happen in the election of Sheriff, Trustee, Register, Circuit Court Clerk, County Court Clerk, Surveyor, or Entry Taker, that two or more persons voted for in any of said elections, have recevied the highest number of votes, and are equal in number, the officer holding the election shall give the casting vote.'
Chapter 1 of the Acts of 1835-36 provides, among other things, for the election of justices of the peace and constables. By section 11 of that act it is provided that:
"In all cases where there is no election by reason of two or more candidates having the same number of votes, in such case the sheriff shall immediately proceed by advertisement and hold again an election in said district for justice or justices of the peace, or constable or constables, as the case may be, until said office or offices shall be filled.'
The quoted sectionof chapter 2 of the Acts of 1835-36 was carried into section 872 of the Code of 1858 in these words:
"If there is a tie vote between two or more persons having the highest number of votes for the same office, in all cases where the office is filled by the votes of a single county, the returning officer shall give the casting vote between such persons.'
The quoted section of chapter 1 of the Acts of 1835-36 was carried into section 873 of the Code of 1858 in these words:
"If the office is filled by the votes of a single district, the election is void in the case mentioned in the preceding section, and the sheriff shall proceed to advertise and hold a new election.'
Obviously, therefore, under the Code of 1858, if there was a tie vote in an election for justice of the peace, the election was void and a new election was necessary. That is to say, under the Code of 1858, the returning officer of election gave the casting vote when there was a tie between candidates for county offices filled by votes from the body of the county. A new election was required when there was a tie vote between candidates for office filled by votes from a single district of the county, namely, when there was a tie vote in an election for constable or for justice of the peace.
The Code of 1932, however, provided the same method for breaking tie votes whether the tie was between candidates for an office, the occupant of which was to be selected by the voters of the county at large or by the voters of a single civil district of the county. In other words, sections 872 and 873 of the Code of 1858 were combined into section 2097 of theCode of 1932 and a single provision made for elections resulting in a tie.
We think that section 2106 was not intended to apply to elections for justice of the peace. As pointed out by Judge Wiseman in the court below, so much of that section of the Code as relates to tie votes between candidates for judicial office is based on chapter 32, section 5, of the Acts of 1834-54. This act was passed just after the constitutional amendment, which took away from the Legislature the power to elect the judges of the state and entrusted that power to the people. It was not intended to apply to elections for justice of the peace. Justices of the peace had been selected by the people, since the Constitution of 1934, and full provision made with reference to their election--including provisions for settling tie votes between candidates for that office. While justices of the peace are judicial officers, they are not judicial officers within the contemplation of section 2106 of the Code. That section of the Code was not designed to work a change of the earlier statute providing for breaking tie votes in elections for justices of the peace.
The Assault on section 2097, if held applicable to elections for justices of the peace, is based on section 15 of article 6 of the Constitution that ...
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