Browning v. Gray

• Decision Date: 03 February 1917
• Citation: 191 S.W. 525
• Parties: BROWNING v. GRAY.
• Court: Tennessee Supreme Court

191 S.W. 525

BROWNING v. GRAY.

Supreme Court of Tennessee.

February 3, 1917.

Appeal from Circuit Court, Clay County; C. E. Snodgrass, Judge.

Election contest by P. S. Browning against J. M. Gray. From judgment sustaining demurrer to petition, petitioner appeals. Affirmed.

Jno. J. Gore, of Gainesboro, and M. C. Sidwell, of Celina, for petitioner. W. C. Davidson, O. B. Maxey, and W. D. Fiske, all of Celina, and W. R. Officer, of Livingston, for defendant.

LANSDEN, J.

The petition in this case was filed by the petitioner, P. S. Browning, for the purpose of contesting the right of the defendant, J. M. Gray, to the office of sheriff of Clay county. It is shown by the petition that at the regular August election, the defendant Gray received 737 votes, and the petitioner, his nearest competitor, received 723 votes; that in these totals are included the votes cast at the Fox Springs precinct, where the petitioner received 9 votes and the defendant Gray received 30 votes. It is averred that at said precinct election the officers of election, being provided with proper blanks furnished by the election commissioners of the county, opened and held the election, and at the conclusion of the voting filled out and signed the certificates or affidavits in blank furnished them by the election commissioners; but no oath was administered to them by any officer authorized to administer oaths, that the filling out of said affidavits after the polls were closed and presenting them to the election commissioners, when in fact they were not sworn to, was a fraud and the case stands as if no affidavit had been subscribed and no oath administered. It is also shown by the petition that with this precinct eliminated from the total returns, the defendant Gray would not have received a majority of the legally cast votes in said county, and that the petitioner would have received such majority, and is the legally elected sheriff of the county and entitled to be inducted into the office.

There was a demurrer to the petition, which was sustained by the circuit judge, who rendered judgment accordingly. From this judgment the petitioner Browning has appealed and assigned errors.

In the petition, as well as in the brief and argument at the bar, petitioner's counsel cast his case entirely upon the failure of the officers holding the election at the Fox Springs precinct to take the oath prescribed by the statute. The oath is as follows:

"You do solemnly swear that, as judge of this election, you will suffer no one to vote whom you know, of your own knowledge, or who appears, either by his own oath or by the testimony of others, not to be a qualified voter; that you will not suffer the ballot box to be out of the presence or sight of at least two of your number until every vote is counted out; that you will faithfully and impartially conduct yourselves as judges of this election; and that you will in all respects perform the duties imposed upon you by law as judges and inspectors of this election. So help you God."

The oath of the clerks is as follows:

"You do solemnly swear that you will faithfully, truly, and impartially discharge your duty as clerks of this election. So help you God."

It is proper to observe that the petition does not charge that the petitioner actually received a majority of the votes cast in the election, or that there was any imposition or deception upon the voters, or that there was disorderly conduct at the precinct complained of, or that the votes were not counted as cast, or that illegal votes were cast, or that legal voters were forbidden to vote, or that the failure to take the oaths of office upon the part of the election officials affected the result of the election in any way. It is merely an irregularity which, it is insisted for the petitioner, is a mandatory one, and a failure to observe it by taking the oath before the polls were opened rendered the election at the precinct complained of absolutely void.

It was observed by this court in Barry v. Lauck, 5 Cold. 593, in 1868, that:

"In determining what circumstances of official omission or misconduct will avoid an election, the object to be attained by an election must be kept in view, to wit: The ascertaining of the will of the community...