Cross v. Keathley

• Decision Date: 30 November 1907
• Parties: CROSS v. KEATHLEY.
• Court: Tennessee Supreme Court

105 S.W. 854

119 Tenn. 567

CROSS v. KEATHLEY.

Supreme Court of Tennessee.

November 30, 1907

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

Election contest by W. A. Cross against R. M. Keathley. From a judgment for petitioner, contestee appeals. Reversed.

E. G Foster, D. Jeffers, William York, and James A. Fowler, for appellant.

James F. Baker and Templeton & Templeton, for appellee.

NEIL J.

This case involves a contested election for the office of register of Scott county. The original petition was filed by W. A Cross in the county court of Scott county, on the 7th day of August, 1906. After alleging that the petitioner was qualified to hold the office of register of Scott county, and that he was a candidate for this office, at the August election, 1906, and that his opponent was R. M. Keathley, it was alleged, in substance, that there were cast in the election 2,016 votes, of which the petitioner received 1,012 while the contestee Keathley received only 1,003, leaving the petitioner a majority of 9 votes, but the election commissioners wrongfully refused to count the returns from the Eleventh district, from which the petitioner received 33 votes, while the contestee received only 16, and that by rejecting these returns the contestee was declared to have a majority of the votes cast, and the certificate of election was by the commissioners of election issued to him.

In August, 1906, the contestee filed his answer, in which he admitted that the election commissioners refused to count the returns from the Eleventh district, but denied that their conduct in so doing was illegal and improper, and insisted that these votes were rightly rejected and should not now be counted. The contestee further alleged that 361 ballots were cast for petitioner, Cross, which were illegal and should not have been counted by the election commissioners and should now be thrown out, because upon each of these ballots before the name of each office there was printed the word "for," and there was also printed upon each of them, and extending more than three-fourths of the way across the ballot, three or more dotted lines, and there was also printed, extending from one-third to one-half the way across the ballot, three or more heavy black lines or marks. It was averred that these marks, and the placing of the word "for" in the manner just related, were in violation of the uniform ballot law.

It was further alleged that 156 ballots were cast and counted for petitioner, Cross, which were illegal, and should have been rejected, and should now be excluded, because these ballots had, likewise, printed before the name of each office the word "for," and because there were printed upon each of said ballots, and extending more than three-fourths of the way across, eight or more broken lines or marks, and there were also printed upon said ballots, and extending from one-third to one-half the way across, three or more heavy black lines or marks, and after the words "justice of the peace" there were printed the words "vote for two," and after the words "school directors" there were printed the words "vote for three."

The number of each of the ballots cast at each precinct, except for the First and Twelfth districts, was particularly alleged, and a sample of each of the said ballots was attached to the answer, marked, respectively, "Exhibit A" and "Exhibit B."

It was also alleged in the answer that there were 64 ballots counted for petitioner, Cross, which were less than 6 7/8 inches in length, and one ballot was counted for him which was less than 2 2/16 inches in width; that of these ballots 30 were deposited in the ballot box in the Sixth district, and 34 were deposited in the ballot box of the Winfield district; and that the 30 ballots which were cast in the Sixth district were also illegal on account of the marks and words above described. It was insisted that all of these ballots, for the reasons mentioned, should be rejected.

On August 21, 1906, the petitioner filed an amended petition, in which, in addition to the grounds of contention relied upon in the original petition, he alleged that 28 persons whose names were given and who had voted for contestee, Keathley, in the Fifth district, were not citizens of Scott county, and were therefore not entitled to vote. On August 26, 1906, the contestee filed an answer to this petition, in which he denied that portion of the allegation in reference to the persons voting in the Fifth district.

In the county court the case was decided in favor of the petitioner or contestant, and judgment rendered accordingly. From this judgment an appeal was prayed and prosecuted to the circuit court. In the latter court, the judgment of the county court was affirmed; it having been held by his honor the trial judge that the returns from the Eleventh district should be counted, and that the classes of ballots which had the marks or lines and the superfluous words alleged in the contestee's answer were not for that reason invalid; that the short and narrow ballots had been clipped after being voted, and consequently were properly counted; and that the persons mentioned in the amended petition as having voted for contestee in the Fifth district were not citizens of Scott county and were not legal voters. On these grounds, as stated, judgment was entered in favor of the petitioner, contestant, Cross.

From the latter judgment, after motion for a new trial had been made and overruled, an appeal was prosecuted to this court by the contestee, and errors have been here assigned.

The errors assigned are as follows:

"(1) The court erred in counting for contestant the 34 short ballots, and the 1 narrow ballot from the Winfield precinct in the Eighth district, and the 30 short ballots in the Sixth district. He should have held that said ballots were invalid, because when voted they were of less length, and the one ballot was of less width, than as required by law.

(2) The court erred in refusing to reject the 361 ballots which were cast for Cross in the several districts alleged in the contestee's first answer, and which had printed thereon, before the name of each office, the word 'for,' and also had printed thereon, and extending more than three-fourths of the way across said ballot, three dotted lines or marks, and also extending one-third to one-half of the way across said ballot three heavy black lines or marks. The court should have held that said words and marks rendered said ballots invalid.

(3) The court erred in refusing to reject the 156 ballots which were counted for Cross in the several districts alleged in the contestee's first answer, which had printed thereon, before the name of the office to be filled, the word 'for,' and also after the words 'justice of the peace' the words 'vote for two,' and after the words 'school directors' the words 'vote for three,' and also had printed thereon, and extending about three-fourths of the way across the same eight broken lines or marks, and extending from one-third to one-half of the way across the same, three heavy black lines or marks. The court should have held that on account of the presence of said words and marks on said ballots the same were invalid.

(4) The court erred in excluding from the votes counted for contestee the 28 ballots which were cast for him and counted by the election officers in the Fifth district. The court should have held that, said votes having been received and counted by the election officers, the presumption was that they were legal, and that there was not sufficient evidence introduced upon the subject to overcome this presumption.

(5) The court erred in setting aside the action of the election commissioners in refusing to count the votes from the Eleventh district, and in now permitting said votes to be counted and considered in making the final result of said election."

The questions raised by assignments Nos. 1, 2, and 3 arise under the uniform ballot law (chapter 21, p. 42, Acts Ext. Sess. 1891), and in an amendment thereto (chapter 101, p. 208, Acts 1893).

The first act (omitting the caption and the enacting clauses) reads as follows:

"Section 1. That in all elections in the state of Tennessee, whether national, state or county, or municipal, except where the provisions of the act approved April 4, 1889, being chapter 188 of the printed Acts of 1889, and the acts amendatory thereof apply, the ballots to be voted shall be of plain, white paper, seven inches long and three inches wide, upon which the office to be filled, with the name or names to be voted for, shall be plainly written or printed.

Sec. 2. That it shall not be lawful to print or place any picture, sign, color, mark, index or insignia thereon, and any ballot of less or greated dimensions than as provided in the first section of this act, or any ballot upon which said picture, sign, color, mark, index or insignia may be placed, if found in the ballot box shall not be counted by the judges holding said election, but shall be treated as invalid.

Sec. 3. That it shall not be lawful for any person to give, offer or impose upon any elector exercising or in contemplation of exercising the elective franchise at any election in this state any ballot other than is provided as aforesaid; and any person so offending shall be guilty of a misdemeanor, and on conviction, shall be fined not less than twenty-five nor more than fifty dollars, and imprisoned ninety days in the county jail or workhouse.

Sec. 4. That any officer holding said election who shall knowingly receive, or the judges thereof who shall count any ballot other than as provided in the first section of this act shall be also guilty of a misdemeanor, and on conviction thereof...