Catlett v. Knoxville, S. & E. Ry. Co.

• Decision Date: 21 May 1908
• Parties: CATLETT et al. v. KNOXVILLE, S. & E. RY. CO. et al.
• Court: Tennessee Supreme Court

112 S.W. 559

120 Tenn. 699

CATLETT et al. v. KNOXVILLE, S. & E. RY. CO. et al.

Supreme Court of Tennessee.

May 21, 1908

Appeal from Circuit Court, Sevier County; G. McHenderson, Judge.

Action by W. R. Catlett, Jr., and others against the Knoxville Sevierville & Eastern Railway Company and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

James H. Welcker and W. A. Bowers, for appellants.

Templeton & Templeton, Penland & Paine, and Zirkle & McMahon, for appellees.

NEIL J.

After the necessary preliminaries required by the statute had been complied with, the quarterly court of Sevier county ordered that an election should be held on the 14th of December 1907, by the election commissioners of the county, to obtain the sense of the people as to whether the county should subscribe $150,000 to the capital stock of the defendant railway company. Pursuant to the statute, it was directed that those in favor of the subscription should put upon their tickets the words "For subscription," and those opposing should put upon their tickets the words "No subscription." The election was accordingly held, and the quarterly county court again met on the 21st of December 1907, to receive the report of the election commissioners and to act thereon. Prior thereto--that is, on December 18, 1907--the election commissioners, through two of its three members, Chairman John W. Sharp and J. B. Brabson, filed with the clerk of the court their report as to the result of the election, showing that they had opened and held the election, after due advertisement, as directed, in all of the civil districts of Sevier county, enumerating them. They further certified that all the returns from all the voting places in the county had been duly received by them from the election officers as required by law, and that on the 16th of December, 1907, they met in the courthouse at Sevierville--that is, two of them, the two above mentioned, the other member, J. L. Yarberry, being absent on account of sickness--and on the date just mentioned began the work of opening, comparing, and compiling the returns, which work not being completed on that day, adjournment was had until the following day, when it was resumed and finished. It was also certified that in all the voting precincts in the county, except those in the Sixth civil district thereof, the officers and judges of election had transmitted and delivered to them as part of their returns the ballots cast at the election, and that the total number of votes cast "For subscription" was 2,008, and the total number cast "No subscription" was 555; that therefore three-fourths of the votes cast were in favor of subscription. They further certified that the returns embraced 270 ballots which bore distinguishing marks or words, contrary to the statutes of this state, and were illegal and void; that these illegal and void ballots were not counted by them, but were reserved and submitted with their report, along with the general returns, including all the poll lists and ballots, to the court.

On the 21st day of December, 1907, the quarterly county court reassembled in special session, pursuant to adjournment and to notice, for the purpose of receiving and acting upon the returns, and the report of the election commissioners of said county, as to the result of the election held on the said 14th day of December. At that session the court passed and directed the entry of an order, among other things, finding and adjudging that the election had been held by the election commissioners, as directed by the court and as required by law, in every established voting place in the county; that the judges and officers of the election, in making returns from the different voting places, included in their returns and as part thereof, the ballots that had been cast in the election, except those from the voting precincts in the Sixth civil district, from which the ballots were not returned by the election officers; that there were cast in said election 270 ballots which were not in conformity with the law under which said election was held and with the order of the court directing the holding thereof; that these 270 ballots bore distinguishing marks, or were otherwise disfigured, and did not contain the words "No subscription" or the words "For subscription"; that after the 270 ballots were inspected by the court, and a full investigation and consideration thereof had by the court, it was adjudged that these 270 ballots were illegal and void, and not to be taken into consideration in ascertaining the result of the election, and ratifying and affirming the action of the election commissioners in rejecting and throwing out the said 270 ballots; that thereupon it was adjudged by the court that the number of votes cast "For subscription" was 2,008, and the number of votes cast "No subscription" was 555, and that more than three--fourths of all the votes cast in the election were in favor of the subscription, and that the election was in all respects fair; that by virtue thereof said subscription had been made, and was accepted by the court, and the court directed that its chairman be constituted the agent of the county for the purpose of having bonds prepared, and to arrange for the payment of the subscription when it should become due under the terms and conditions of a former order of the court, pronounced October 29, 1907.

A motion was made by the plaintiffs in the present case, asking delay in order that they might investigate the election and find means of showing its invalidity. The motion was overruled, and the order entered as above stated.

Thereupon a petition was filed in the circuit court, complaining of the election and asking that the subscription be declared void. The special ground of the complaint was that the board of election commissioners and the county court had thrown out the 270 ballots above referred to, without authority to take such action, and it was insisted that these votes were valid ones, and should have been counted, and, if counted, that the result would be that the subscription had not carried by a three-fourths vote, but had been lost. This bill was filed against the railway company, the board of election commissioners, the county court, and Sevier county. All of these defendants answered upon the merits, and at the same time the railway company filed a cross-petition in which it complained of the 270 ballots, alleging that they were void and should be stricken out on the trial of the matter in the circuit court. To this cross-petition the petitioners or plaintiffs in the original petition were made defendants; also Sevier county. This was likewise answered. The original petitioners were taxpayers of the county.

In the court below the case was heard on an agreed statement of facts, supplemented as to some points by the evidence of two witnesses.

The circuit judge, after considering the case upon the pleadings and the evidence, held that neither the election commissioners nor the county court had the power to go behind the returns and purge the ballots, but that he himself, under the case made by the pleadings, had the right to do so, and the correct result had been reached by both of the bodies referred to. In other words, the circuit judge held, upon an independent investigation, that the 270 ballots were illegal and should be excluded, and that on excluding them it appeared that there were 2,008 votes "For subscription" and 555 votes "No subscription," which resulted in a judgment that the subscription had carried by the requisite three-fourths vote prescribed by Acts 1887, p. 57, c. 3.

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