Curtis v. State

• Decision Date: 14 November 1931
• Citation: 43 S.W.2d 391
• Parties: CURTIS et al. v. STATE ex rel. MORELAND.
• Court: Tennessee Supreme Court

43 S.W.2d 391

CURTIS et al. v. STATE ex rel. MORELAND.

Supreme Court of Tennessee.

November 14, 1931.

Error to Circuit Court, Carter County; D. A. Vines, Judge.

Action for mandamus by the State, on the relation of J. M. Moreland, against B. P. Curtis and others. To review a judgment for plaintiff, defendants bring error.

Reversed and suit dismissed.

Cox, Taylor & Epps, of Johnson City, and Dugger & Reece and R. C. Campbell, all of Elizabethton, for plaintiffs in error.

Divine & Guinn, J. G. Humphrey, and T. E. Mitchell, all of Johnson City, for defendant in error.

SWIGGART, J.

The relator, J. M. Moreland, and W. J. Fair, were candidates for the office of sheriff of Carter county at the August election 1930. The defendants composed the board of election commissioners for the county. W. J. Fair was not made a party defendant. The commissioners of election issued a certificate of election to Fair, after canvassing the returns filed with them by the several election officers. Thereafter the relator instituted this action for the writ of mandamus, averring in the petition that the election returns showed a clear majority of the votes cast for the relator, and that the defendants had fraudulently and incorrectly certified a majority in favor of Fair.

In response to the alternative writ, the defendants answered, asserting the performance of their duties in good faith, and their finding of the majority in favor of Fair. The original election returns were exhibited with the answer. Upon consideration of the pleadings, and particularly the original election returns, the circuit court found that votes cast and recorded for the relator had been incorrectly counted by the defendants for a third candidate, or rejected entirely as duplications, in sufficient number, if counted for Moreland, to give him the majority. The circuit court accordingly awarded the peremptory writ of mandamus and also directed a reference to ascertain the amount of damages sustained by the relator on account of the incorrect certification of the result of the election by the defendants.

From the judgment of the circuit court the defendants have prosecuted their appeal in the nature of a writ of error to this court.

Defendants assert that the writ of mandamus was wrongfully awarded by the circuit court, for the reason that they, as the board of election commissioners, have once performed their duty of canvassing the returns and certifying to the result; that they have no power or authority to again canvass the returns and issue a second certificate of election, either voluntarily or in response to judicial process.

In State, on the relation of Parkey, v. Carr, 4 Tenn. Civ. App. (Higgins) 435, a similar action for the writ of mandamus was successfully prosecuted; the judgment of the Court of Civil Appeals having been affirmed by this Court without written opinion. In that case, however, it appeared from the answer of the election commissioners that they had canvassed only a portion of the election returns, and that the certificate issued by them was issued without canvassing some of the returns. The Court of Civil Appeals said: "It is no answer to this command [mandamus] to state that they had already issued a certificate to another person when in the same pleading it is shown that this certificate was issued before the commissioners had canvassed the returns as the law required. * * * It is their duty to examine the returns, notwithstanding alterations and mutilations, and to make an honest endeavor to certify the result that was shown or would have been shown by the returns in their unaltered condition."

Our examination of authorities in other jurisdictions discloses conflict as to whether a board, charged with the duty of canvassing election returns and certifying to the result, may be compelled by mandamus to reassemble and recanvass the returns, after they have once performed that duty, notwithstanding it be made to appear that the result certified is incorrect. The majority of the cases which seem to support the right to compel a recanvass and a new certificate are cases in which, as in State ex rel. Parkey v. Carr, supra, the original canvass omitted some portions of the returns, and was therefore not a complete performance of the duty of the canvassers. See cases collected in notes: 36 L. R. A. (N. S.) 1089; Ann. Cas. 1912C, 1254, 1257; 38 Corpus Juris 727 (Mandamus, § 327); 9 Ruling Case Law 1111 (Elections, § 115).

In the case before us, the petition does not charge that the election commissioners failed to consider any of the returns filed with them. The votes which the petition claims were wrongfully excluded from Moreland's total appear on the returns from two precincts. In one of them, the Heaton Creek precinct of the Second district, the list of candidates appears on two pages of the returns, and votes are tallied opposite the names of candidates on both pages. The election commissioners concluded that the officers of the election intended to certify only one of the pages, and that the second page is a duplication of the first. Therefore, they did not include in Moreland's total the tallies recorded on the second sheet of the returns for this precinct. In the Seventh district the tally sheet records votes opposite the name of the relator which completely fill the space opposite his name. Fifty-three tallies appear on the line immediately below, opposite the name of a third candidate, but beginning in the middle of the page, with a space for about forty tallies left blank at the left margin. When the returns were filed with the defendants, these fifty-three votes were added in the total of Moreland's vote, but the election commissioners disregarded this entry of the total vote and counted the fifty-three tallies for the third candidate, opposite whose name they were entered.

This action of the election commissioners did not amount to a failure to consider and canvass the returns, but amounted to a construction or interpretation of the face of the returns which the petition insists, and the circuit court found, was erroneous. The answer of the defendants shows that they canvassed the fifty-three votes in question in the Seventh district and counted them for the third candidate; and that they construed the questioned tallies on the returns for the Second district as duplications, not intended by the election officers who made the returns to be counted as votes.

It is not controverted but that the duties of the election commissioners, as a canvassing board, are ministerial in character, and as such subject to the writ of mandamus. State ex rel. Stewart v. Board of Inspection, 74 Tenn. (6 Lea) 12, 20; Taylor v. Carr, 125 Tenn. 235, 257, 141 S. W. 745, Ann. Cas. 1913C, 155, and cases there cited. But it is also true that some discretion must be reposed in the commissioners, when apparent inconsistencies or contradictions appear on the face of the returns, or they bear manifest indication of alterations made after leaving the hands of the election officers. It is not the office of the writ of mandamus to control the exercise of this discretion by the commissioners, unless it can be employed to forestall a threatened arbitrary and oppressive action. Peerless Const. Co. v. Bass, 158 Tenn. 518, 14 S.W.(2d) 732.

This was recognized by the learned judge who delivered the...