Hagan v. Henry

• Decision Date: 14 December 1934
• Parties: HAGAN v. HENRY et al.
• Court: Tennessee Supreme Court

76 S.W.2d 994

168 Tenn. 223

HAGAN v. HENRY et al.

Supreme Court of Tennessee.

December 14, 1934

Error to Circuit Court, Giles County; W. B. Turner, Judge.

Election contest by L. Aubrey Hagan against Joe W. Henry and others in which Joe W. Henry filed a petition for writs of certiorari and supersedeas, praying that an injunction be adjudged void and superseded as beyond power and jurisdiction of circuit court to issue.

Writs of certiorari and supersedeas issued, and case remanded.

Thos H. Peebles, Sr., of Columbia, and Eslick & Hagan, of Pulaski for plaintiff in error.

Seth M Walker, of Nashville, and R. E. Dotson and David Rhea, both of Pulaski, for defendant in error.

SWIGGART Justice.

This is an election contest, now pending in the circuit court of Giles county. The plaintiff was the incumbent of the office of sheriff and was a candidate to succeed himself at the regular election held in August of this year. The defendant Henry was also a candidate, and received a plurality of 84 votes on the face of the returns. Henry was given a certificate of election by the county board of election commissioners.

The original petition of the plaintiff challenges the qualifications of several hundred voters who cast votes for Henry, and seeks a judgment purging the returns of that number of illegal votes. On that petition, and pursuant to its prayer, the circuit judge granted plaintiff a temporary writ of injunction, restraining Henry from interfering with plaintiff's possession of the office, and restraining the county judge, made a defendant to the petition, from inducting Henry into office, pending final determination of the election contest.

The injunction was issued on August 31, the day before the commencement of the new term. Thereafter a supplemental petition was filed, charging that Henry had disqualified himself from taking office by paying poll taxes to influence voters and otherwise purchasing votes.

An answer was filed by Henry, denying that he was the beneficiary of illegal votes, and charging that the plaintiff's total included many such votes, etc.

On October 11, the defendant Henry moved that the injunction be dissolved because illegally issued and for other reasons. That motion has not been acted upon by the circuit court.

The case is before us on Henry's petition, filed December 4, for the writs of certiorari and supersedeas, and praying that the injunction be adjudged void and superseded, as beyond the power and jurisdiction of the circuit court to issue.

If the injunction was beyond the power and jurisdiction of the circuit court to issue, the defendant is entitled to the writs prayed. Rhea County v. White, 163 Tenn. 388, 400, 43 S.W.2d 375. The petition does not seek the writ of supersedeas alone, as in Howell v. Thompson, 130 Tenn. 311, 170 S.W. 253.

That case is therefore not controlling here. Nor do we think that the failure of the circuit court to rule on the motion to dissolve the injunction, after a delay of nearly sixty days, is sufficient to defeat petitioner's right to seek relief by this proceeding.

Prior to State ex rel. v. Bratton, 148 Tenn. 174, 253 S.W. 705, 708, our reports contained no exceptions to the rule that an injunction may not issue, in aid of an election contest, to restrain the execution of the will of the voters as certified by the election officers. See cases collected and reviewed in State ex rel. v. Grindstaff, 144 Tenn. 554, 234 S.W. 510.

The apparent exception made in Bratton's Case was in a proceeding in which "statements of the petition and answer, without more, settle[d] the question of title to the office, and the right of the incumbent to hold over." No questions of fact were involved, and the injunction granted on the pleadings was, in effect, a permanent and not a mere temporary injunction.

The injunction issued by the circuit court in the case before us is a temporary injunction, designed and intended only to protect and continue the plaintiff's possession of the office until the final determination of the election contest. Whether this use of the injunctive process is within the judicial power of the circuit court, under Code, § 10533, is necessarily dependent upon the legality of the result accomplished thereby.

The defendant Henry, by reason of his certificate of election, holds prima facie title to the office. Curtis v. State ex rel., 163 Tenn. 220, 230, 43 S.W. 391; State ex rel. v. Malone, 131 Tenn. 149, 170, 171, 174 S.W. 257; State ex rel. v. Wright, 10 Heisk (57 Tenn.) 237, 247. In the case last cited the court said:

"Hence the right of contest is intended to be confined, not upon him for whom the largest ballot has been cast, for prima facie the office is already his by the voice of the electors, which is the sole fountain of title. But the contest is upon him who has failed of this prima facie title.

The presumption is in favor of the validity of an election held under the forms of law. That presumption stands for a conclusion until rebutted by proof upon a contest."

As to the effect of this prima facie title on the right to the possession of an office pending a contest, we find this early statement of the rule in 10 Am. & Eng. Encyc. Law (2d Ed.) 761:

"As in cases of

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